11–22–04 Monday Vol. 69 No. 224 Nov. 22, 2004

Pages 67805–68052

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i II Federal Register / Vol. 69, No. 224 / Monday, November 22, 2004

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Contents Federal Register Vol. 69, No. 224

Monday, November 22, 2004

Administration on Aging Unified Abrasive Manufacturers Association, 67950– See Aging Administration 67951 Video Electronics Standards Association, 67951 Aging Administration Window & Door Manufacturers Association, 67951 NOTICES Meetings: Arts and Humanities, National Foundation 2005 White House Conference on Aging Policy See National Foundation on the Arts and the Humanities Committee, 67915 Centers for Disease Control and Prevention Agriculture Department NOTICES See Grain Inspection, Packers and Stockyards Grants and cooperative agreements; availability, etc.: Administration National Academic Centers of Excellence on Youth Violence Prevention, 67915–67930 Antitrust Division NOTICES Coast Guard National cooperative research notifications: NOTICES Actuarial Standards Board, 67940 Meetings: American Association for Accreditation of Ambulatory Towing Safety Advisory Committee, 67932 Surgery Facilities, 67940 American Association of Textile Chemists and Colorists, Commerce Department 67940 See Industry and Security Bureau American College of Osteopathic Emergency Physicians, See International Trade Administration 67940–67941 American Institute of Aeronautics and Astronautics, Commodity Futures Trading Commission 67941 RULES American Society of Baking, 67941 Commodity Exchange Act: Association for Information and Image Management, Derivatives transaction execution facility registration or 67941–67942 contract market designation; application procedures, Automotive Lift Institute, 67942 67811–67817 Builders Hardware Manufacturers Association, Inc., Consumer Product Safety Commission 67942 NOTICES Commission on English Language Program Accreditation, Meetings; Sunshine Act, 67899 67942–67943 Composite Panel Association, 67943 Defense Department Consortium for Advanced Manufacturing-International, RULES 67943 Acquisition regulations: Cyber Security Industry Alliance, Inc., 67943 Architect-engineer services contracting, 67855–67856 Distributed Management Task Force, Inc., 67943–67944 Freedom of Information Act; implementation, 67856 DVB Project, 67944 Government supply sources; contractor use, 67858 Electric Reliability Council of Texas, Inc., 67944 Obsolete research and development contracting Electronic Industries Alliance, 67944 procedures removed, 67857–67858 Gaming Standards Association, 67944–67945 Small disadvantaged businesses and leader company Glazing Industry Secretariat Committee, 67945 contracting, 67855 GlobalPlatform, Inc., 67945 Technical amendments, 67854–67855 Illuminating Engineering Society of North America, Technical data conformity; written assurance, 67856– 67945 67857 Institute of Nuclear Materials Management, 67945–67946 PROPOSED RULES International Imaging Industry Association, Inc., 67946 Acquisition regulations: Joint Venture (under ATP Award No. 70NANB4H3044), Information technology equipment; government inventory 67946 screening, 67884–67885 Material Handling Industry, 67946–67947 Telecommunications services— National Council for Prescription Drug Programs, 67947 Basic agreements, 67883–67884 National Electrical Manufacturers Association, 67947 Clauses update, 67885–67886 National Fluid Power Association, 67947–67948 NOTICES OASIS Open, 67948 Acquisition regulations: Open Geospatial Consortium, Inc, 67948 Contract financing; Contractor’s Request for Progress Outdoor Power Equipment Institute, 67948–67949 Payments (SF 1443), 67899 Petroleum Environmental Research Forum, 67949 Agency information collection activities; proposals, Software Defined Radio Forum, 67949–67950 submissions, and approvals, 67899–67901 Southwest Research Institute, 67950 Meetings: Steel Joist Institute, 67950 U.S. Joint Forces Command Transformation Advisory Steel Tank Institute, 67950 Group, 67901

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Drug Enforcement Administration Federal Energy Regulatory Commission NOTICES NOTICES Applications, hearings, determinations, etc.: Electric rate and corporate regulation filings, 67902–67903 Indace, Inc., 67951–67962 Applications, hearings, determinations, etc.: ISP Freetown Fine Chemicals, Inc., 67962–67963 Sun River Electric Cooperative, Inc., 67901–67902 Orasure Technologies, Inc., 67963 Federal Highway Administration Employment and Training Administration NOTICES NOTICES Environmental statements; notice of intent: Federal-State unemployment compensation program: Riverside County, CA, 68002–68003 Federal law interpretations— Trade Adjustment Assistance Program; Training and Federal Maritime Commission Employment Guidance Letters; correction, 67963– NOTICES 67964 Investigations, hearings, petitions, etc.: Federal Unemployment Tax Act; certifications, 67964 China Shipping Container Lines (Hong Kong) Co., Ltd., 67912 Energy Department See Federal Energy Regulatory Commission Federal Railroad Administration RULES Environmental Protection Agency Railroad safety: RULES Locomotive horns use at highway-rail grade crossings; Air quality implementation plans; approval and sounding requirement, 67858–67859 promulgation; various States: Oregon, 67819–67823 Federal Reserve System PROPOSED RULES NOTICES Air quality implementation plans; approval and Agency information collection activities; proposals, promulgation; various States: submissions, and approvals, 67912–67913 Oregon, 67880 Banks and bank holding companies: NOTICES Change in bank control, 67913 Agency information collection activities; proposals, Formations, acquisitions, and mergers, 67913–67914 submissions, and approvals, 67903–67911 Fish and Wildlife Service Federal Aviation Administration NOTICES RULES Endangered and threatened species: Airworthiness directives: Incidental take permits— McCauley Propeller Systems, 67807–67809 Elbert County, CO; Preble’s meadow jumping mouse, MD Helicopters, Inc., 67805–67807 67934 Mooney Airplane Co., Inc., 67809–67811 Class E airspace; correction, 67811 PROPOSED RULES Food and Drug Administration Airworthiness directives: RULES Airbus, 67869–67872 Animal drugs, feeds, and related products: Pacific Aerospace Corp., Ltd., 67864–67867 Estradiol, 67818–67819 Rolls-Royce Corp., 67867–67869 Trenbolone acetate and estradiol benzoate, 67817–67818 Airworthiness standards: NOTICES Special conditions— Reports and guidance documents; availability, etc.: Cessna Model 172 series airplanes, 67860–67864 Approved or abbreviated new drug application NOTICES specifications; enforcement discretion for compendial Exemption petitions; summary and disposition, 68001– changes, 67930–67931 68002 Geological Survey Federal Communications Commission NOTICES RULES Agency information collection activities; proposals, Radio services, special: submissions, and approvals, 67934–67935 Private land mobile services— Meetings: 800 MHz band; public safety interference proceeding, Commercial Remote Sensing Space Policy 67823–67854 Implementation Working Group, 67935 PROPOSED RULES Radio services, special: Grain Inspection, Packers and Stockyards Administration Private land mobile services— NOTICES 800 MHz band; public safety interference proceeding; Agency information collection activities; proposals, ex parte presentations, etc., 67880–67882 submissions, and approvals, 67887–67890 Radio stations; table of assignments: New Jersey and Texas, 67882–67883 Health and Human Services Department Ohio and Kentucky, 67882 See Aging Administration NOTICES See Centers for Disease Control and Prevention Applications, hearings, determinations, etc.: See Food and Drug Administration Gulf Power Co., 67911–67912 See Health Resources and Services Administration

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NOTICES Land Management Bureau Grants and cooperative agreements; availability, etc.: PROPOSED RULES Family planning— Land resource management: Services projects; correction, 67914–67915 Indian allotments— Federal regulatory review; withdrawn, 67880 Health Resources and Services Administration NOTICES NOTICES Oil shale research and development, CO, UT, and WY; Agency information collection activities; proposals, potential, 67935–67938 submissions, and approvals, 67931 Grant and cooperative agreement awards: Minerals Management Service International AIDS Education and Training Center, NOTICES 67931–67932 Agency information collection activities; proposals, submissions, and approvals, 67938–67939 Homeland Security Department National Foundation on the Arts and the Humanities See Coast Guard See Transportation Security Administration NOTICES Meetings: Arts Advisory Panel, 67964 Housing and Urban Development Department RULES Nuclear Regulatory Commission Grants: RULES Home Investment Partnerships Program; homeownership Production and utilization facilities; domestic licensing: affordability requirements; amendments, 68849– Risk-informed categorization and treatment of structures, 68852 systems, and components for nuclear power reactors, 68007–68048 Industry and Security Bureau NOTICES PROPOSED RULES Environmental statements; availability, etc.: National security industrial base regulations: Belair Quartz, Inc., 67964–67965 Defense priorities and allocations system; rated orders Meetings: rejection; electronic transmission of reasons, 67872– Reactor Safeguards Advisory Committee, 67965 67873 Reports and guidance documents; availability, etc.: Enforcement actions; policy and procedures— Interior Department Civil monetary penalties; inflation adjustment; See Fish and Wildlife Service correction, 68005 See Geological Survey See Land Management Bureau Pacific Northwest Electric Power and Conservation See Minerals Management Service Planning Council NOTICES Internal Revenue Service Columbia River Basin Fish and Wildlife Program; PROPOSED RULES amendments, 67966 Income taxes: Personnel Management Office Predecessors and successors; section 355(e) gain recognition limitation, 67873–67880 NOTICES NOTICES Agency information collection activities; proposals, Agency information collection activities; proposals, submissions, and approvals, 67966–67967 submissions, and approvals, 68003–68004 Presidio Trust NOTICES International Trade Administration Meetings: NOTICES Board of Directors, 67967 Antidumping: Polychloroprene rubber from— Securities and Exchange Commission Japan, 67890–67891 NOTICES Polyester staple fiber from— Agency information collection activities; proposals, Korea, 67891–67892 submissions, and approvals, 67967–67968 Stainless steel sheet and strip in coils from— Self-regulatory organizations; proposed rule changes: Germany, 67896–67898 Boston Stock Exchange, Inc., 67968–67970 Italy, 67894–67896 Chicago Board Options Exchange, Inc., 67971–67972 Various countries, 67892–67894 Fixed Income Clearing Corp., 67972–67973 Countervailing duties: International Securities Exchange , Inc., 67974–67979 Stainless steel sheet and strip in coils from— National Association of Securities Dealers, Inc., 67979– Korea, 67898–67899 67980 New York Stock Exchange, Inc., 67980–67999 Justice Department Pacific Exchange, Inc., 67999–68001 See Antitrust Division See Drug Enforcement Administration Small Business Administration NOTICES Labor Department Disaster loan areas: See Employment and Training Administration Alabama, 68001

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North Carolina, 68001 Separate Parts In This Issue Meetings: National Advisory Council, 68001 Part II Nuclear Regulatory Commission, 68007–68048

Transportation Department Part III See Federal Aviation Administration Housing and Urban Development Department, 68849–68852 See Federal Highway Administration See Federal Railroad Administration Reader Aids Transportation Security Administration Consult the Reader Aids section at the end of this issue for NOTICES phone numbers, online resources, finding aids, reminders, Agency information collection activities; proposals, and notice of recently enacted public laws. submissions, and approvals, 67933–67934 To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Treasury Department listserv.access.gpo.gov and select Online mailing list See Internal Revenue Service archives, FEDREGTOC-L, Join or leave the list (or change 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.

10 CFR 50...... 68808 14 CFR 39 (3 documents) ...... 67805, 67807, 67809 71...... 67811 Proposed Rules: 23...... 67860 39 (3 documents) ...... 67864, 67867, 67869 15 CFR Proposed Rules: 700...... 67872 17 CFR 37...... 67811 38...... 67811 21 CFR 522 (2 documents) ...... 67817, 67818 24 CFR 92...... 68850 26 CFR Proposed Rules: 1...... 67873 40 CFR 52...... 67819 Proposed Rules: 52...... 67880 43 CFR Proposed Rules: 2530...... 67880 47 CFR 2 (2 documents) ...... 67823, 67853 22 (2 documents) ...... 67823, 67853 24 (2 documents) ...... 67823, 67853 74 (2 documents) ...... 67823, 67853 78 (2 documents) ...... 67823, 67853 90 (2 documents) ...... 67823, 67853 Proposed Rules: 2...... 67880 22...... 67880 24...... 67880 73 (2 documents) ...... 67882 74...... 67880 78...... 67880 90...... 67880 48 CFR 211...... 67854 217...... 67855 219 (2 documents) ...... 67855 224...... 67856 227...... 67856 235...... 67857 251...... 67858 252 (2 documents) ...... 67856, 67858 Proposed Rules: 239 (3 documents) ...... 67883, 67884, 67885 252...... 67885 49 CFR 222...... 67858 229...... 67858

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Rules and Regulations Federal Register Vol. 69, No. 224

Monday, November 22, 2004

This section of the FEDERAL REGISTER ADDRESSES: Use one of the following SUPPLEMENTARY INFORMATION: This contains regulatory documents having general addresses to submit comments on this amendment adopts a new AD applicable applicability and legal effect, most of which AD: to MDHI Model MD900 helicopters with are keyed to and codified in the Code of • DOT Docket Web site: Go to http:/ a TT strap, part number (P/N) Federal Regulations, which is published under /dms.dot.gov and follow the instructions 900R3442009–103, 900R6442009–103, 50 titles pursuant to 44 U.S.C. 1510. for sending your comments 900R3442009–101, or 500N5311–5, The Code of Federal Regulations is sold by electronically; installed. This action requires: the Superintendent of Documents. Prices of • Government-wide rulemaking Web • Before further flight, for TT strap, P/ new books are listed in the first FEDERAL site: Go to http://www.regulations.gov N 900R3442009–103 and 900R6442009– REGISTER issue of each week. and follow the instructions for sending 103, reducing the life limit from 3034 to your comments electronically; 2500 hours time-in-service (TIS); • Mail: Docket Management Facility; • Within 10 hours TIS, for any TT DEPARTMENT OF TRANSPORTATION U.S. Department of Transportation, 400 strap that has accumulated 1190 or more Seventh Street, SW., Nassif Building, hours TIS, doing a visual and x-ray Federal Aviation Administration Room PL–401, Washington, DC 20590; inspection of each TT strap and • Fax: (202) 493–2251; or replacing any unairworthy part before 14 CFR Part 39 • Hand Delivery: Room PL–401 on further flight; the plaza level of the Nassif Building, • Before the TT strap accumulates [Docket No. FAA–2004–19613; Directorate 400 Seventh Street, SW., Washington, 1200 hours TIS, for any TT strap with Identifier 2004–SW–38–AD; Amendment 39– DC, between 9 a.m. and 5 p.m., Monday less than 1190 hours TIS, doing a visual 13870; AD 2004–23–15] through Friday, except Federal holidays. and x-ray inspection of each strap and You may get the service information replacing any unairworthy part before RIN 2120–AA64 identified in this AD from MD further flight; and Helicopters Inc., Attn: Customer • Within 7 days, reporting Airworthiness Directives; MD Support Division, 4555 E. McDowell information about any unairworthy TT Helicopters, Inc. Model MD900 Rd., Mail Stop M615–GO48, Mesa, strap to Roger Durbin, Aviation Safety Helicopters Arizona 85215–9734, telephone 1–800– Engineer, FAA, Los Angeles Aircraft 388–3378, fax 480–891–6782, or on the Certification Office, Airframe Branch, AGENCY: Federal Aviation 3960 Paramount Blvd., Lakewood, Administration, DOT. Web at http://www.mdhelicopters.com. You may examine this information at California 90712, telephone (562) 627– ACTION: Final rule; request for the National Archives and Records 5233, fax (562) 627–5210. comments. Administration (NARA). For This amendment is prompted by two information on the availability of this SUMMARY: This amendment adopts a recent in-flight TT strap failures. The material at NARA, call (202) 741–6030, new airworthiness directive (AD) for the cause of the failures is not known at this or go to: http://www.archives.gov/ MD Helicopters, Inc. (MDHI) Model time, and this AD is interim action. We federal_register/ MD900 helicopters. This action requires will consider further rulemaking once code_of_federal_regulations/ reducing the life limit of certain Notar our investigation is complete. The ibr_locations.html. fan system tension-torsion (TT) straps. actions specified in this AD are This action also requires, at a specified Examining the Docket intended to prevent failure of a TT strap time interval, removing each affected TT resulting in loss of directional control You may examine the docket that and subsequent loss of control of the strap from the helicopter, doing a visual contains the AD, any comments, and and x-ray inspection, and replacing any helicopter. other information on the Internet at We have reviewed MD Helicopters unairworthy part before further flight. http://dms.dot.gov, or in person at the Reporting the discovery of any Service Bulletin SB–900–095, dated Docket Management System (DMS) November 3, 2004. The service bulletin unairworthy TT strap is also required. Docket Offices between 9 a.m. and 5 This amendment is prompted by two advises of the reduction of the TT strap p.m., Monday through Friday, except life limit and describes procedures for recent in-flight TT strap failures. The Federal holidays. The Docket Office actions specified in this AD are performing an inspection of each TT (telephone (800) 647–5227) is located on strap for nicks, cuts, cracks, or wear. intended to prevent failure of a TT strap the plaza level of the Department of resulting in loss of directional control Procedures for a Level II or higher X-Ray Transportation Nassif Building at the Technician to do and interpret an x-ray and subsequent loss of control of the street address stated in the ADDRESSES helicopter. inspection of each TT strap for section. Comments will be available in progressive fiber fractures are also DATES: Effective December 7, 2004. the AD docket shortly after the DMS included in the service bulletin. The incorporation by reference of receives them. This unsafe condition is likely to exist certain publications listed in the FOR FURTHER INFORMATION CONTACT: or develop on other helicopters of the regulations is approved by the Director Roger Durbin, Aviation Safety Engineer, same type design. Therefore, this AD is of the Federal Register as of December FAA, Los Angeles Aircraft Certification being issued to prevent failure of a TT 7, 2004. Office, Airframe Branch, 3960 strap resulting in loss of directional Comments for inclusion in the Rules Paramount Blvd., Lakewood, California control and subsequent loss of control of Docket must be received on or before 90712, telephone (562) 627–5233, fax the helicopter. This AD requires, before January 21, 2004. (562) 627–5210. further flight, reducing the life limit of

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certain part-numbered TT straps. This post a report summarizing each 900R3442009–103, 900R6442009–103, AD also requires, depending on the substantive verbal contact with FAA 900R3442009–101, or 500N5311–5, installed, hours accumulated on the TT strap, personnel concerning this AD. Using the certificated in any category. doing a visual and x-ray inspection search function of our docket web site, Compliance: Required as indicated, unless accomplished previously. within 10 hours TIS or before the you can find and read the comments to To prevent failure of a TT strap in the accumulation of 1200 hours TIS and any of our dockets, including the name Notar fan system, which could result in loss replacing any unairworthy part before of the individual who sent the of directional control and subsequent loss of further flight. Reporting the discovery of comment. You may review the DOT’s control of the helicopter, accomplish the any unairworthy TT strap is also complete Privacy Act Statement in the following: required. Accomplishing the Federal Register published on April 11, (a) Before further flight, for TT straps, inspections in accordance with the 2000 (65 FR 19477–78), or you may visit P/N 900R3442009–103 and 900R6442009– previously described service bulletin is http://dms.dot.gov. 103, reduce the life limit from 3034 to 2500 required. The short compliance time hours time-in-service (TIS). We have determined that this AD will (b) Within 10 hours TIS, for any TT strap involved is required because the not have federalism implications under that has accumulated 1190 or more hours previously described critical unsafe Executive Order 13132. This AD will TIS, remove the TT strap from the helicopter condition can adversely affect the not have a substantial direct effect on and do a visual and x-ray inspection in controllability of the helicopter. the States, on the relationship between accordance with the Inspection Instructions, Therefore, reducing the TT strap life the national Government and the States, paragraph 2.B.(1). through (5). and Figures 1 limit before further flight, inspecting or on the distribution of power and and 2 of MD Helicopters Service Bulletin each TT strap at the specified time responsibilities among the various SB900–095, dated November 3, 2004 (SB). interval, and reporting information levels of government. Replace any unairworthy part before further about any unairworthy TT strap is flight. For the reasons discussed above, I (c) Before the TT strap accumulates 1200 required within 7 days, and this AD certify that the regulation: hours TIS, for any TT strap with less than must be issued immediately. 1. Is not a ‘‘significant regulatory 1190 hours TIS, remove the TT strap from the Since a situation exists that requires action’’ under Executive Order 12866; helicopter and do a visual and x-ray the immediate adoption of this 2. Is not a ‘‘significant rule’’ under the inspection in accordance with the Inspection regulation, it is found that notice and DOT Regulatory Policies and Procedures Instructions, paragraph 2.B.(1). through (5). opportunity for prior public comment (44 FR 11034, February 26, 1979); and and Figures 1 and 2 of the SB. Replace any hereon are impracticable, and that good 3. Will not have a significant unairworthy part before further flight. cause exists for making this amendment economic impact, positive or negative, (d) The x-ray inspection of the TT strap effective in less than 30 days. on a substantial number of small entities must be performed by a Level II or higher x- We estimate that this AD will affect ray technician who is qualified under the under the criteria of the Regulatory guidelines established by MIL–STD–410E, 31 helicopters. It will take Flexibility Act. approximately 7 work hours for each ATA Specification 105, AIA–NAS–410, or an We prepared an economic evaluation FAA-accepted equivalent for qualification inspection and replacement at an of the estimated costs to comply with standards. average labor rate of $65 per work hour. this AD. See the DMS to examine the (e) Within 7 days, for any TT strap that you It will also cost $100 for each x-ray economic evaluation. find unairworthy, report the helicopter serial inspection. Required parts will cost number (S/N), the TT strap P/N and S/N, the approximately $757 per TT strap List of Subjects in 14 CFR Part 39 total hours TIS on the TT strap, and a replacement. Based on these figures, we Air transportation, Aircraft, Aviation description of the part condition rendering it estimate the total cost impact of the AD safety, Incorporation by reference, unairworthy. Report the information to Roger on U.S. operators to be $40,672 Safety. Durbin, Aviation Safety Engineer, FAA, Los (assuming a visual and x-ray inspection Angeles Aircraft Certification Office, Adoption of the Amendment Airframe Branch, 3960 Paramount Blvd., on each helicopter and a TT strap Lakewood, California 90712, telephone (562) replacement on 8% of the fleet). Accordingly, pursuant to the 627–5233, fax (562) 627–5210. authority delegated to me by the Comments Invited (f) Information collection requirements Administrator, the Federal Aviation contained in this AD have been approved by This AD is a final rule that involves Administration amends part 39 of the the Office of Management and Budget (OMB) requirements that affect flight safety and Federal Aviation Regulations (14 CFR under the provisions of the Paperwork was not preceded by notice and an part 39) as follows: Reduction Act of 1980 (44 U.S.C. 3501 et opportunity for public comment; seq.) and have been assigned OMB Control however, we invite you to submit any PART 39—AIRWORTHINESS Number 2120–0056. written data, views, or arguments DIRECTIVES (g) This AD revises the Airworthiness regarding this AD. Send your comments Limitations section of the maintenance manual by reducing the life limit of the TT to an address listed under ADDRESSES. ■ 1. The authority citation for part 39 continues to read as follows: strap, P/N 900R3442009–103 and Include ‘‘Docket No. FAA–2004–19613; 900R6442009–103, from 3034 hours TIS to Directorate Identifier 2004–SW–38–AD’’ Authority: 49 U.S.C. 106(g), 40113, 44701. 2500 hours TIS. at the beginning of your comments. We (h) To request a different method of specifically invite comments on the § 39.13 [Amended] compliance or a different compliance time overall regulatory, economic, ■ 2. Section 39.13 is amended by adding for this AD, follow the procedures in 14 CFR environmental, and energy aspects of a new airworthiness directive to read as 39.19. Contact the Los Angeles Aircraft the AD. We will consider all comments follows: Certification, Transport Airplane Directorate, received by the closing date and may FAA, for information about previously 2004–23–15 MD Helicopters, Inc.: approved alternative methods of compliance. amend the AD in light of those Amendment 39–13870. Docket No. (i) The inspections shall be done in comments. FAA–2004–19613; Directorate Identifier accordance with MD Helicopters Service We will post all comments we 2004–SW–38–AD. Bulletin SB900–095, dated November 3, receive, without change, to http:// Applicability: Model MD900 helicopters, 2004. The Director of the Federal Register dms.dot.gov, including any personal with a Notar fan system that has a tension- approved this incorporation by reference in information you provide. We will also torsion (TT) strap, part number (P/N) accordance with 5 U.S.C. 552(a) and 1 CFR

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part 51. Copies may be obtained from MD We must receive any comments on Service Bulletin (ASB) No. ASB247A, Helicopters Inc., Attn: Customer Support this AD by January 21, 2005. Revision A, dated August 18, 2004. That Division, 4555 E. McDowell Rd., Mail Stop ADDRESSES: Use one of the following ASB describes procedures for removing M615–GO48, Mesa, Arizona 85215–9734, addresses to comment on this AD. the propeller from the airplane, telephone 1–800–388–3378, fax 480–891– • 6782, or on the web at DOT Docket Web site: Go to performing an eddy-current inspection, www.mdhelicopters.com. Copies may be http://dms.dot.gov and follow the and installing the propeller after the inspected at the National Archives and instructions for sending your comments inspection. Records Administration (NARA). For electronically. FAA’s Determination and Requirements information on the availability of this • Government-wide rulemaking Web of This AD material at NARA, call 202–741–6030, or go site: Go to http://www.regulations.gov to: http://www.archives.gov/federal_register/ The unsafe condition described _ _ _ and follow the instructions for sending code of federal regulations/ your comments electronically. previously is likely to exist or develop ibr_locations.html. • Mail: Docket Management Facility; on other McCauley Propeller Systems (j) This amendment becomes effective on propeller assemblies, P/Ns December 7, 2004. U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, B5JFR36C1101/114GCA–0, Issued in Fort Worth, Texas, on November Room PL–401, Washington, DC 20590– C5JFR36C1102/L114GCA–0, 10, 2004. 0001. B5JFR36C1103/114HCA–0, and Kim Smith, • Fax: (202) 493–2251. C5JFR36C1104/L114HCA–0, of the same Acting Manager, Rotorcraft Directorate, • Hand Delivery: Room PL–401 on type design. We are issuing this AD to Aircraft Certification Service. the plaza level of the Nassif Building, detect cracked hubs, which could cause [FR Doc. 04–25542 Filed 11–19–04; 8:45 am] 400 Seventh Street, SW., Washington, failure of the propeller hub and loss of BILLING CODE 4910–13–U DC, between 9 a.m. and 5 p.m., Monday control of the airplane. This AD requires through Friday, except Federal holidays. performing a one-time eddy-current Contact McCauley Propeller Systems, inspection of the propeller hub for DEPARTMENT OF TRANSPORTATION P.O. Box 7704, Wichita, KS 67277–7704, cracks within: U.S.A.; telephone (800) 621–7767, for • 200 hours time-since-last inspection Federal Aviation Administration the service information identified in this (TSLI), but not later than 30 days after AD. the effective date of this AD, on 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: propeller assemblies with more than [Docket No. FAA–2004–19242; Directorate Timothy Smyth, Aerospace Engineer, 8,000 hours time-in-service (TIS) and, if Identifier 2004–NE–21–AD; Amendment 39– Chicago Aircraft Certification Office, necessary, replacing the propeller 13871; AD 2004–23–16] assembly. FAA, Small Airplane Directorate, 2300 • East Devon Avenue, Des Plaines, IL 400 hours TSLI, but not later than RIN 2120–AA64 60018; telephone: (847) 294–7132; fax: 60 days after the effective date of this (847) 294–7834. AD, on propeller assemblies with 8,000 Airworthiness Directives; McCauley or fewer hours TIS and, if necessary, Propeller Systems Five-Blade Propeller SUPPLEMENTARY INFORMATION: We have replacing the propeller assembly. Assemblies received three reports of cracks in the You must use the service information hubs of certain McCauley Propeller described previously to perform the AGENCY: Federal Aviation Systems propeller assemblies. An actions required by this AD. Administration (FAA), DOT. operator reported an oil leak at the end ACTION: Final rule; request for of a flight. Investigation revealed a FAA’s Determination of the Effective comments. significant crack in the propeller hub. In Date addition, the same operator reported Since an unsafe condition exists that SUMMARY: The FAA is adopting a new cracks in two other hubs that might be requires the immediate adoption of this airworthiness directive (AD) for related to the first report. In both of AD, we have found that notice and McCauley Propeller Systems propeller those reports, the operator inspected the opportunity for public comment before assemblies, part numbers (P/Ns) hub because of reported oil leaks. The issuing this AD are impracticable, and B5JFR36C1101/114GCA–0, operator performed a voluntary that good cause exists for making this C5JFR36C1102/L114GCA–0, inspection program, and did not find amendment effective in fewer than 30 B5JFR36C1103/114HCA–0, and any more cracks. About 30 percent of days. C5JFR36C1104/L114HCA–0, installed the remaining fleet has complied with on BAE Systems (Operations) Limited the voluntary inspection over the past Interim Action Jetstream Model 4100 series airplanes. several months. No operator has These actions are interim actions and This AD requires a one-time eddy- reported any more cracked hubs. we might take further rulemaking current inspection of the propeller hub Although we believe the cracks are actions in the future. for cracks, and if necessary, replacing caused by fatigue, we don’t know the Comments Invited the propeller assembly. This AD results exact cause. One possibility is that from three reports of cracked hubs. We operating the propeller in the restricted This AD is a final rule that involves are issuing this AD to detect cracked RPM range during ground operation is requirements affecting flight safety and hubs, which could cause failure of the contributing to premature failure of the was not preceded by notice and an propeller hub and loss of control of the propeller hub. This condition, if not opportunity for public comment; airplane. corrected, could result in failure of the however, we invite you to send any DATES: This AD becomes effective propeller hub and loss of control of the written relevant data, views, or December 7, 2004. The Director of the airplane. arguments on this AD. Send your Federal Register approved the comments to an address listed under incorporation by reference of certain Relevant Service Information ADDRESSES. Include ‘‘AD Docket No. publications listed in the regulation as We have reviewed and approved the FAA–2004–19242; Directorate Identifier of December 7, 2004. technical contents of McCauley Alert 2004–NE–21–AD’’ in the subject line of

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your comments. We specifically invite in the AD docket shortly after the DMS Authority: 49 U.S.C. 106(g), 40113, 44701. comments on the overall regulatory, receives them. economic, environmental, and energy § 39.13 [Amended] Regulatory Findings aspects of the rule that might suggest a ■ 2. The FAA amends § 39.13 by adding We have determined that this AD will need to adjust it. the following new airworthiness not have federalism implications under We will post all comments we directive: receive, without change, to http:// Executive Order 13132. This AD will dms.dot.gov, including any personal not have a substantial direct effect on 2004–23–16 McCauley Propeller Systems: information you provide. We will also the States, on the relationship between Amendment 39–13871. Docket No. post a report summarizing each the national Government and the States, FAA–2004–19242; Directorate Identifier substantive verbal contact with FAA or on the distribution of power and 2004–NE–21–AD. personnel about this AD. Using the responsibilities among the various Effective Date search function of the Docket levels of government. For the reasons discussed above, I (a) This airworthiness directive (AD) Management System (DMS) web site, becomes effective December 7, 2004. anyone can find and read the comments certify that the regulation: in any of our dockets, including the 1. Is not a ‘‘significant regulatory Affected ADs name of the individual who sent the action’’ under Executive Order 12866; (b) None. comment (or signed the comment for an 2. Is not a ‘‘significant rule’’ under the Applicability association, business, labor union, etc.). DOT Regulatory Policies and Procedures You may review the DOT’s complete (44 FR 11034, February 26, 1979); and (c) This AD applies to McCauley Propeller Privacy Act Statement in the Federal 3. Will not have a significant Systems propeller assemblies, part numbers Register published on April 11, 2000 economic impact, positive or negative, (P/Ns) B5JFR36C1101/114GCA–0, (65 FR 19477–78), or you may visit on a substantial number of small entities C5JFR36C1102/L114GCA–0, B5JFR36C1103/ http://dms.dot.gov. under the criteria of the Regulatory 114HCA–0, and C5JFR36C1104/L114HCA–0, We are reviewing the writing style we Flexibility Act. installed on BAE Systems (Operations) Limited Jetstream Model 4100 series currently use in regulatory documents. We prepared a summary of the costs airplanes. We are interested in your comments on to comply with this AD and placed it in whether the style of this document is the AD Docket. You may get a copy of Unsafe Condition this summary at the address listed clear, and your suggestions to improve (d) This AD results from three reports of under ADDRESSES. the clarity of our communications with cracked hubs. We are issuing this AD to you. You can get more information List of Subjects in 14 CFR Part 39 detect cracked hubs, which could cause about plain language at http:// failure of the propeller hub and loss of Air transportation, Aircraft, Aviation www.faa.gov/language and http:// control of the airplane. safety, Incorporation by reference, www.plainlanguage.gov. Safety. Compliance Examining the AD Docket Adoption of the Amendment (e) You are responsible for having the You may examine the docket that actions required by this AD performed within contains the AD, any comments ■ Under the authority delegated to me by the compliance times specified unless the received, and any final disposition in the Administrator, the Federal Aviation actions have already been done. person at the DMS Docket Offices Administration amends part 39 of the Onetime Eddy-Current Inspection between 9 a.m. and 5 p.m., Monday Federal Aviation Regulations (14 CFR part 39) as follows: (f) Perform a onetime eddy-current through Friday, except Federal holidays. inspection using the compliance times The Docket Office (telephone (800) 647– PART 39—AIRWORTHINESS specified in Table 1 of this AD. Use 1.A. 5227) is located on the plaza level of the DIRECTIVES through 2.D.(7)(c) of the Accomplishment Department of Transportation Nassif Instructions of McCauley Alert Service Building at the street address stated in ■ 1. The authority citation for part 39 Bulletin (ASB) No. ASB247A, Revision A, ADDRESSES. Comments will be available continues to read as follows: dated August 18, 2004.

TABLE 1.—COMPLIANCE TIMES

If the propeller assembly has . . . Then inspect . . .

(1) More than 8,000 hours time-in-service (TIS) on Within 200 hours time-since-last inspection (TSLI) or within 30 days after the effective the effective date of this AD. date of this AD, whichever is earlier. (2) 8,000 or fewer hours TIS on the effective date of Within 400 hours TSLI or within 60 days after the effective date of this AD, whichever is this AD. earlier.

Credit for Previous Compliance Budget and assigned OMB control number Revision A, dated August 18, 2004, to (g) Performing the eddy-current inspection 2120–0056. perform the actions required by this AD. The using McCauley ASB No. A247, dated April Alternative Methods of Compliance Director of the Federal Register approved the 30, 2004, is acceptable for compliance with incorporation by reference of this service (i) The Manager, Chicago Aircraft bulletin in accordance with 5 U.S.C. 552(a) this AD. Certification Office, has the authority to and 1 CFR part 51. You can get a copy from Reporting Requirements approve alternative methods of compliance for this AD if requested using the procedures McCauley Propeller Systems, P.O. Box 7704, (h) The reporting requirement specified in found in 14 CFR 39.19. Wichita, KS 67277–7704, U.S.A.; telephone 2.D.(5) of the Accomplishment Instructions (800) 621–7767. You may review copies on of Alert Service Bulletin No. ASB247A, Material Incorporated by Reference the internet at http://dms.dot.gov, or at the Revision A, dated August 18, 2004, are (j) You must use McCauley Propeller National Archives and Records approved by the Office of Management and Systems Alert Service Bulletin No. ASB247A, Administration (NARA). For information on

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the availability of this material at NARA, call DATES: This AD becomes effective on ignited in the left lower cockpit area 202–741–6030, or go to: http:// December 1, 2004. below the rudder/brake pedals and www.archives.gov/federal_register/ As of December 1, 2004, the Director _ _ _ behind the firewall. Hydraulic fluid code of federal regulations/ of the Federal Register approved the ignited when a plastic hydraulic supply ibr_locations.html. incorporation by reference of certain line behind the firewall melted. Related Information publications listed in the regulation. What is the potential impact if FAA (k) None. We must receive any comments on took no action? The V-clamp could this AD by January 12, 2005. detach from the turbocharger and Issued in Burlington, Massachusetts, on November 10, 2004. ADDRESSES: Use one of the following to expose the firewall to hot exhaust gases, which could result in an in-flight fire. Peter A. White, submit comments on this AD: • DOT Docket Web site: Go to http:/ An in-flight fire could lead to loss of Acting Manager, Engine and Propeller control of the airplane and passenger Directorate, Aircraft Certification Service. /dms.dot.gov and follow the instructions injury. [FR Doc. 04–25543 Filed 11–19–04; 8:45 am] for sending your comments electronically. Is there service information that BILLING CODE 4910–13–U • Government-wide rulemaking Web applies to this subject? Mooney has site: Go to http://www.regulations.gov issued Service Bulletin M20–283A, dated March 30, 2004. DEPARTMENT OF TRANSPORTATION and follow the instructions for sending your comments electronically. What are the provisions of this service Federal Aviation Administration • Mail: Docket Management Facility; information? The service bulletin U.S. Department of Transportation, 400 includes procedures for: 14 CFR Part 39 Seventh Street, SW., Nassif Building, —Replacing the existing radiant heat Room PL–401, Washington, DC 20590– shield with the new heat shield, [Docket No. FAA–2004–19618; Directorate 001. deflector kit; Identifier 2004–CE–39–AD; Amendment 39– • Fax: 1–202–493–2251. —Replacing the existing exhaust 13872; AD 2004–23–17] • Hand Delivery: Room PL–401 on tailpipe-to-turbocharger V-band the plaza level of the Nassif Building, clamp; and RIN 2120–AA64 400 Seventh Street, SW., Washington, —Modifying the hydraulic brake fluid DC, between 9 a.m. and 5 p.m., Monday poly line. Airworthiness Directives; Mooney through Friday, except Federal holidays. Airplane Company, Inc., Model M20M FAA’s Determination and Requirements To get the service information of the AD Airplanes identified in this proposed AD, contact Mooney Airplane Company, Inc., Louis What has FAA decided? We have AGENCY: Federal Aviation evaluated all pertinent information and Administration (FAA), DOT. Schreiner Field, Kerrville, Texas 78028; telephone: (830) 896–6000. identified an unsafe condition that is ACTION: Final rule; request for To view the comments to this AD, go likely to exist or develop on other comments. to http://dms.dot.gov. The docket products of this same type design. Since the unsafe condition described number is FAA–2004–19618. SUMMARY: The FAA is adopting a new previously is likely to exist or develop airworthiness directive (AD) to FOR FURTHER INFORMATION CONTACT: on other Mooney Model M20M supersede Airworthiness Directive 91– Garry D. Sills, Aerospace Engineer, airplanes of the same type design, we 03–15, which applies to certain Mooney Rotorcraft Directorate, ASW–150, 2601 are issuing this AD to prevent the V- Airplane Company, Inc., (Mooney) Meacham Blvd, Fort Worth, Texas clamp from detaching from the Model M20M airplanes. AD 91–03–15 76193; telephone: (817) 222–5154; turbocharger and to prevent exposure of currently requires you to replace the facsimile: (817) 222–5960. the firewall to hot exhaust gases, which tailpipe coupling with improved SUPPLEMENTARY INFORMATION: could result in an in-flight fire. An in- tailpipe coupling. Since we issued AD Has FAA taken any action to this flight fire could lead to loss of control 91–03–15, a fire erupted in the lower point? The FAA issued AD 91–03–15, of the airplane and passenger injury. left cockpit area on one of the airplanes Amendment 39–6870 to prevent the What does this AD require? This AD affected by AD 91–03–15. The V-clamp discharge of high temperature exhaust supersedes AD 91–03–15 and requires that attaches the exhaust tailpipe to the gases inside the engine compartment you to incorporate the actions in the turbocharger fell off, which allowed the that could result in the airplane cabin previously-referenced service bulletin. exhaust tailpipe to detach from the catching fire for certain Mooney Model In preparing this rule, we contacted turbocharger. Hot exhaust gases from M20M airplanes. AD 91–03–15 type clubs and aircraft operators to get the turbocharger outlet blasted the lower currently requires replacing the tailpipe technical information and information left firewall. This AD requires you to coupling. on operational and economic impacts. replace the existing radiant heat shield What has happened since AD 91–03– We did not receive any information with the new improved design heat 15 to initiate this AD action? The FAA through these contacts. If received, we shield, deflector kit; replace the existing received a report that a fire erupted would have included a discussion of exhaust tailpipe-to-turbocharger V-band below the pilot’s rudder pedals shortly any information that may have clamp with the new design V-band after takeoff on one of the airplanes influenced this action in the rulemaking clamp; and modify the hydraulic brake affected by AD 91–03–15, which caused docket. fluid poly line. We are issuing this AD smoke to fill the cabin. Investigation How does the revision to 14 CFR part to prevent the V-clamp from detaching revealed that the V-clamp attaching the 39 affect this AD? On July 10, 2002, we from the turbocharger and to prevent exhaust tailpipe to the turbocharger had published a new version of 14 CFR part exposure of the firewall to hot exhaust fallen off. This allowed the exhaust 39 (67 FR 47997, July 22, 2002), which gases, which could result in an in-flight tailpipe to drop away form the governs FAA’s AD system. This fire. An in-flight fire could lead to loss turbocharger. Hot exhaust gases from regulation now includes material that of control of the airplane and passenger the turbocharger outlet were blasted relates to altered products, special flight injury. onto the lower left firewall. The fire permits, and alternative methods of

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compliance. This material previously the national government and the States, the Federal Aviation Administration was included in each individual AD. or on the distribution of power and amends part 39 of the Federal Aviation Since this material is included in 14 responsibilities among the various Regulations (14 CFR part 39) as follows: CFR part 39, we will not include it in levels of government. future AD actions. Will this AD involve a significant rule PART 39—AIRWORTHINESS or regulatory action? For the reasons DIRECTIVES Comments Invited discussed above, I certify that this AD: Will I have the opportunity to 1. Is not a ‘‘significant regulatory ■ 1. The authority citation for part 39 comment before you issue the rule? This action’’ under Executive Order 12866; continues to read as follows: AD is a final rule that involves 2. Is not a ‘‘significant rule’’ under the Authority: 49 U.S.C. 106(g), 40113, 44701. requirements affecting flight safety and DOT Regulatory Policies and Procedures was not preceded by notice and an (44 FR 11034, February 26, 1979); and § 39.13 [Amended] opportunity for public comment; 3. Will not have a significant economic impact, positive or negative, ■ 2. The FAA amends § 39.13 by however, we invite you to submit any removing Airworthiness Directive (AD) written relevant data, views, or on a substantial number of small entities under the criteria of the Regulatory 91–03–15, Amendment 39–6870 and by arguments regarding this AD. Send your Flexibility Act. adding a new AD to read as follows: comments to an address listed under We prepared a summary of the costs 2004–23–17 Mooney Airplane Company, ADDRESSES. Include ‘‘Docket No. FAA– to comply with this AD and placed it in 2004–19618; Directorate Identifier Inc.: Amendment 39–13872; Docket No. the AD Docket. You may get a copy of FAA–2004–19618; Directorate Identifier 2004–CE–39–AD’’ in the subject line of this summary by sending a request to us your comments. If you want us to 2004–CE–39–AD. Supersedes AD 91–03– at the address listed under ADDRESSES. 15; Amendment 39–6870. acknowledge receipt of your mailed Include ‘‘Docket No. FAA–2004–19618; comments, send us a self-addressed, Directorate Identifier 2004–CE–39–AD’’ When Does This AD Become Effective? stamped postcard with the docket in your request. (a) This AD becomes effective on December number written on it; we will date- This rulemaking is promulgated 1, 2004. stamp your postcard and mail it back to under the authority in Subtitle VII, Part Are Any Other ADs Affected by This Action? you. We specifically invite comments A, Subpart III, Section 44701, General on the overall regulatory, economic, requirements. Under that section, the (b) Yes. This AD supersedes AD 91–03–15, Amendment 39–6870. environmental, and energy aspects of FAA is charged with prescribing the rule that might suggest a need to minimum standards required in the What Airplanes Are Affected by This AD? modify it. If a person contacts us interest of safety for the design of (c) This AD affects Model M20M airplanes, through a nonwritten communication, aircraft. This regulation is within the serial numbers 27–0001 through 27–0321, and that contact relates to a substantive scope of that authority since it corrects that are certificated in any category. part of this AD, we will summarize the an unsafe condition in the design of the contact and place the summary in the aircraft caused by the V-clamp What Is the Unsafe Condition Presented in This AD? docket. We will consider all comments detaching from the turbocharger and received by the closing date and may exposing the firewall to hot exhaust (d) This AD is the result of an in-flight amend the AD in light of those gases. cockpit fire. We are issuing this AD to comments. prevent the V-clamp from detaching from the List of Subjects in 14 CFR Part 39 turbocharger and to prevent exposure of the Regulatory Findings Air transportation, Aircraft, Aviation firewall to hot exhaust gases, which could Will this AD impact various entities? safety, Incorporation by reference, result in an in-flight fire. An in-flight fire could lead to loss of control of the airplane We have determined that this AD will Safety. and passenger injury. not have federalism implications under Adoption of the Amendment Executive Order 13132. This AD will What Must I Do To Address This Problem? not have a substantial direct effect on ■ Accordingly, under the authority (e) To address this problem, you must do the States, on the relationship between delegated to me by the Administrator, the following:

Actions Compliance Procedures

(1) Remove the existing radiant heat shield, Within 10 hours time-in-service (TIS) after De- Follow Mooney Airplane Company, Inc. Serv- part number (P/N) 600182–501 (A), and re- cember 1, 2004 (the effective date of this ice Bulletin M20–283A, dated March 30, place with the new radiant heat shield, P/N AD), unless already done. If you have al- 2004. 600182–501 (B), and install the new heat ready incorporated all parts of Mooney Air- shield deflector, P/N 600505–001. Remove plane Company, Inc. Service bulletin M20– the existing V-band clamp, P/N 55677–340M 283, dated January 3, 2004, then you only or 40D21162–340M, and install the new V- have to replace the tailpipe V-band clamp band clamp, P/N NH1009399–10 or with the new configuration V-band clamp, 40D23255–340M. P/N NH109399–10 or 40D23255–340M. (2) Modify the hydraulic brake fluid poly line ..... Within 10 hours TIS after December 1, 2004 Follow Mooney Airplane Company, Inc. Serv- (the effective date of this AD), unless al- ice Bulletin M20–283A, dated March 30, ready done. If you have already incor- 2004. porated all parts of Mooney Airplane Com- pany, Inc. Service Bulletin M20–283, dated January 3, 2004, then you only have to re- place the tailpipe V-band clamp with the new configuration V-band clamp, P/N NH109399–10 or 40D23255–340M.

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May I Request an Alternative Method of DEPARTMENT OF TRANSPORTATION published in the Federal Register on Compliance? Tuesday, October 19, 2004, (69 FR (f) You may request a different method of Federal Aviation Administration 61439) (FR Doc. 04–23387) are corrected compliance or a different compliance time as follows: for this AD by following the procedures in 14 14 CFR Part 71 PART 71—[CORRECTED] CFR 39.19. Unless FAA authorizes otherwise, [Docket No. FAA–2004–19325; Airspace send your request to your principal Docket No. 04–ACE–54] § 71.1 [Corrected] inspector. The principal inspector may add ■ On page 61440, Column 2, change the comments and will send your request to the Modification of Class E Airspace; Manager, Fort Worth Aircraft Certification Dodge City, KS third paragraph to read: Office, FAA. For information on any already ‘‘ACE KS E2 Dodge City, KS approved alternative methods of compliance, AGENCY: Federal Aviation contact Garry D. Sills, Aerospace Engineer, Administration (FAA), DOT. Dodge City Regional Airport, KS (Lat. 37°45′53″ N., long. 99°58′00″ W.) Rotorcraft Directorate, ASW–150, 2601 ACTION: Direct final rule; correction. Meacham Blvd., Fort Worth, Texas 76193; Within a 4.2-mile radius of Dodge City telephone: (817) 222–5154; facsimile: (817) SUMMARY: This action corrects a direct Regional Airport.’’ 222–5960. final rule; request for comments that ■ On page 61440, Column 2, change the (1) Alternative methods of compliance was published in the Federal Register fifth paragraph to read: (AMOC) approved for AD 91–03–15 are not on Tuesday, October 19, 2004, (69 FR considered approved as an AMOC for this 61439) (FR Doc. 04–23387). It corrects ‘‘ACE KS E5 Dodge City, KS AD. errors in the legal descriptions of the Dodge City Regional Airport, KS (2) You may have already done the actions Class E airspace area designated as a (Lat. 37°45′53″ N., long. 99°58′00″ W.) of this AD per an AMOC from 91–03–15. If surface area and the Class E airspace Dodge City VORTAC so, no further action is required. area extending upward from 700 feet (Lat. 37°51′02″ N., long. 100°00′20″ W.) above the surface at Dodge City, KS. That airspace extending upward from 700 Does This AD Incorporate Any Material by DATES: feet above the surface within a 6.7-mile Reference? This direct final rule is effective on 0901 UTC, January 20, 2005. radius of Dodge City Regional Airport and (g) You must do the actions required by within 1.9 miles each side of the Dodge City FOR FURTHER INFORMATION CONTACT: this AD following the instructions in Mooney VORTAC 160° radial extending from the 6.7- Kathy Randolph, Air Traffic Division, Airplane Company, Inc. Service Bulletin mile radius of the airport to 17 miles M20–283A, dated March 30, 2004. The Airspace Branch, ACE–520C, DOT southeast of the VORTAC.’’ Regional Headquarters Building, Federal Director of the Federal Register approved the Issued in Kansas City, MO, on November incorporation by reference of this service Aviation Administration, 901 Locust, 4, 2004. Kansas City, MO 64106; telephone: bulletin in accordance with 5 U.S.C. 552(a) Anthony D. Roetzel, (816) 329–2525. and 1 CFR part 51. To get a copy of this Acting Area Director, Western Flight Services service information, contact Mooney SUPPLEMENTARY INFORMATION: Operations. Airplane Company, Inc., Louis Schreiner History [FR Doc. 04–25700 Filed 11–19–04; 8:45 am] Field, Kerrville, Texas 78028; telephone: BILLING CODE 4910–13–M (830) 896–6000. To review copies of this Federal Register document 04–23387, service information, go to the National published on Tuesday, October 19, 2004 Archives and Records Administration (69 FR 61439), modified the Class E COMMODITY FUTURES TRADING (NARA). For information on the availability airspace area designated as a surface COMMISSION of this material at NARA, go to: http:// area and the Class E airspace area _ www.archives.gov/federal register/ extending upward from 700 feet above 17 CFR Parts 37 and 38 code_of_federal_regulations/ the surface at Dodge City, KS. The ibr_locations.html or call (202) 741–6030. To modification corrected discrepancies in RIN 3038–AC14 view the AD docket, go to the Docket the Dodge City Regional Airport airport Management Facility; U.S. Department of reference point (ARP) used in the legal Application Procedures for Transportation, 400 Seventh Street, SW., descriptions, corrected the airspace Registration as a Derivatives Nassif Building, Room PL–401, Washington, dimensions to protect for diverse Transaction Execution Facility or DC 20590–001 or on the Internet at http:// departures, established an extension to Designation as a Contract Market dms.dot.gov. The docket number is FAA– the airspace area extending upward AGENCY: Commodity Futures Trading 2004–19618. from 700 feet above the surface and Commission. brought the legal descriptions of the Issued in Kansas City, Missouri, on ACTION: Final rules. November 12, 2004. Dodge City, KS Class E airspace areas into compliance with FAA Orders David R. Showers, SUMMARY: The Commodity Futures 7400.2E, Procedures for Handling Trading Commission (Commission or Acting Manager, Small Airplane Directorate, Airspace Matters, and 8260.19C, Flight Aircraft Certification Service. CFTC) is amending its regulations to Procedures and Airspace. However, the revise the application and review [FR Doc. 04–25595 Filed 11–19–04; 8:45 am] Dodge City Regional Airport ARP has procedures for registration as a BILLING CODE 4910–13–P since been recomputed requiring a Derivatives Transaction Execution further revision to the Dodge City, KS Facility (DTEF) or designation as a Class E airspace areas. Contract Market (DCM). The ■ Accordingly, pursuant to the authority amendments eliminate the presumption delegated to me, the legal descriptions of of automatic fast-track review of the Class E airspace area designated as a applications and replace it with the surface area and the Class E airspace area presumption that all applications will extending upward from 700 feet above be reviewed pursuant to the statutory the surface at Dodge City, KS, as 180-day timeframe and procedures

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specified in Section 6(a) of the review period. These fast-track review case the Commission would register the Commodity Exchange Act (CEA or Act). periods are substantially shorter than applicant as a DTEF or designate the In lieu of the automatic fast-track review the 180-day review period specified in applicant as a DCM during or by the end (under which applicants were deemed Section 6(a) of the Act for reviewing of the 90-day period unless the to be registered as DTEFs 30 days, or DCM and DTEF applications.6 The rules Commission terminated the expedited designated as DCMs 60 days, after provide procedures for terminating the review for certain specifically identified receipt of an application), the fast-track review, including termination reasons. The proposed amendments amendments permit applicants to by the Commission if it appears that the would lengthen the expedited review request expedited review and to be application’s form or substance fails to periods for DCM applications by 30 registered as a DTEF or designated as a meet the requirements of the days and for DTEF applications by 60 DCM by the Commission not later than Commission’s regulations.7 days. The longer time periods were 90 days after the date of receipt of the Among other things, the application believed to be necessary, based upon the application. The amendments also, procedures also generally identify Commission’s review of eight DCM among other things, more completely information required to be included in applications under the current DCM identify application content applications for registration as a DTEF 8 expedited review period, to ensure a requirements; provide that review under or designation as a DCM,9 require that comprehensive review of applications the expedited review procedures may be the applicant support requests for and to meet other public policy terminated if it appears that the confidential treatment of information objectives, including the Commission’s application is materially incomplete, included in the application with policy to promote transparency in raises novel or complex issues that reasonable justification,10 and identify Commission operations, implemented require additional time for review, or where additional guidance for in August of 2003, by providing for the has undergone substantive amendment applicants can be found.11 The rules posting of all such applications on the or supplementation during the review also provide procedures for the Commission’s website for a period of at period; reorganize the paragraphs being withdrawal of an application for least 15 days for public review and revised; and eliminate duplication. The registration or vacation of registration as comment.17 The proposed 90-day amendments are responsive to the a DTEF 12 and for the withdrawal of an review period should provide sufficient Commission’s experience in processing application for designation or vacation time to review applications and to applications and reflect administrative of designation as a DCM,13 and specify respond to any public comments. While practices that have been implemented the extent of the delegation of authority longer than the current fast-track review since the rules were first adopted. from the Commission to the Director of periods, the 90-day review period DATES: Effective December 22, 2004. the Division of Market Oversight, with would be substantially shorter than the FOR FURTHER INFORMATION CONTACT: the concurrence of the General Counsel, 180-day review period established Duane C. Andresen, Special Counsel, with respect to the termination of under the Act.18 (telephone 202–418–5492, e-mail expedited review procedures.14 The proposed amendments would also modify the Commission’s internal [email protected]), Division of Market B. The Proposed Amendments Oversight, Three Lafayette Centre, 1155 processing procedures under which an 21st Street, NW., Washington, DC On September 1, 2004, the applicant would be registered as a DTEF 20581. This document is also available Commission published proposed or designated as a DCM. Under the at http://www.regulations.gov. amendments to its part 37 and 38 proposal, an applicant would no longer be deemed to be registered or designated SUPPLEMENTARY INFORMATION: regulations governing application procedures.15 The proposed based upon the passage of time (30 days I. Background amendments would modify the for DTEFs, 60 days for DCMs). If the A. Overview application procedures in a number of applicant requested expedited review, respects. With respect to the timeliness the Commission would take affirmative The Commission adopted the of the review of applications generally, action to register or designate the application procedures specified in the proposed amendments would applicant as a DTEF or DCM, Commission Regulations 37.5 1 and respectively, subject to conditions if 2 establish the presumption that all 38.3 for boards of trade applying to be applications are submitted for review appropriate, not later than 90 days after registered as DTEFs or designated as under the 180-day timeframe specified receipt of the application, unless the DCMs in 2001 when it first in section 6(a) of the Act.16 An Commission terminated the expedited implemented the Commodity Futures review. Thus, registration as a DTEF or 3 expedited 90-day review could be Modernization Act of 2000 (CFMA). requested by the applicant, in which designation as a DCM would involve These procedures presume that an affirmative action by the Commission, application will be submitted and 6 See 7 U.S.C. 8(a). which would normally be in the form of reviewed pursuant to a fast-track 7 17 CFR 37.5(d), 38.3(c). issuance of a Commission order. It procedure under which a board of trade 8 17 CFR 37.5(b)(1)(iii). would be possible, under the proposed is deemed to be designated as a DCM 60 9 17 CFR 38.3(a)(1)(iii). procedures, for applicants who submit days after submitting its application,4 or 10 17 CFR 37.5(b)(1)(v); 38.3(a)(1)(v). 11 17 CFR 37.5(c); 38.3(b). registered as a DTEF 30 days after 17 The Commission has recently proposed 12 submitting its application,5 unless 17 CFR 37.5(e). revisions to Commission Regulation 40.8 to specify notified otherwise during the respective 13 17 CFR 38.3(d). which portions of an application for registration as 14 17 CFR 37.5(f); 38.3(e). a DTEF or designation as a DCM will routinely be 15 69 FR 53367 (September 1, 2004). made public. See 69 FR 44981 (July 28, 2004). 1 17 CFR 37.5. 16 Under the current rules, DCM and DTEF 18 Although the Commission has not yet reviewed 2 17 CFR 38.3. applications are routinely reviewed under the fast- an application to become registered as a DTEF 3 See 66 FR 42256 (August 10, 2001). The CFMA, track procedures unless the applicant instructs the under the fast track procedure, it anticipates that Appendix E of Pub. L. 106–554, 114 Stat. 2763, Commission in writing at the time of submission of such an application would likely require a review substantially revised the Commodity Exchange Act, the application or during the review period to period similar to that experienced in the review of 7 U.S.C. 1 et seq. review the application pursuant to the time DCM applications. Accordingly, the Commission 4 17 CFR 38.3(a)(1). provisions of and procedures under section 6 of the proposed to conform the DTEF expedited review 5 17 CFR 37.5(b). Act. See 17 CFR 37.5(b)(1)(vi); 38.3(a)(1)(vi). period to that applicable to DCMs.

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applications that are complete and not to be entered into by the applicant that application with reasonable amended or supplemented during the enable the applicant to comply with a justification. The Commission believes review period to be registered as a DTEF requirement for trading or registration that the procedures provided in or designated as a DCM in less than 90 criterion (DTEFs) or a designation Commission Regulation 145.9, Petition days. criterion or core principle (DCMs) and for confidential treatment of information With respect to the termination of that final, signed copies of such submitted to the Commission, should be expedited review, the rules provide that documents would be required to be followed by all applicants. fast-track review may be terminated submitted prior to registration or Under the proposed amendments, the because the application’s form or designation. The initial application items required to be included in an substance fails to meet the requirements would be required to include something application to be reviewed under the of Part 37 or 38, as appropriate, or upon more than a letter of intent or draft statutory 180-day review procedures written instruction of the applicant contract or agreement, such as a final would be identical to those required to during the review period. The proposed contract or agreement signed by at least be included in an application to be amendments would clarify and expand one of the parties. While the reviewed under the expedited review the rationale for terminating expedited Commission is cognizant that applicants procedures with the following review and would provide that the may prefer to defer the finalization of exceptions for the expedited review expedited review period also could be contracts in order to defer associated applicants and applications: (1) The terminated if the application is costs until registration or designation, it applicant must request expedited materially incomplete, raises novel or must balance that preference against the review; and (2) the application must not complex issues that require additional assurance that a contract or agreement be amended or supplemented by the time for review or, as more fully will actually be executed prior to applicant, except as requested by the described below, undergoes major registration or designation. Commission or for correction of amendment or supplementation. If With respect to the additional typographical errors, renumbering or expedited review were terminated for information that would be required to other nonsubstantive revisions. The any of the reasons cited above, the be submitted as part of the proposal would provide that amending 21 application would continue to be application, the proposed or supplementing an application in a reviewed pursuant to the 180-day amendments would require that manner that is inconsistent with the statutory procedure. Finally, the applicants submit a ‘‘regulatory chart’’ above provision would result in proposed amendments would delete the that describes the manner in which the termination of the expedited review. provision of the rules that would require items included in the application enable The proposed amendments would the Commission, upon terminating fast- the applicant to comply with each also modify and standardize the track review, to commence a proceeding requirement for trading and registration delegation of authority provisions applicable to applications for to deny a DCM or DTEF application criterion (DTEFs) or with each registration as a DTEF and for upon the request of the applicant. This designation criterion and core principle designation as a DCM. Currently, the procedure has proved to be unnecessary (DCMs). The proposal would also rules provide for the delegation of to date, and an analogous procedure is require that the applicant identify any authority to the Director of the Division available under the statutory review item included in the application that of Market Oversight, with the procedure.19 raises novel issues and explain how that concurrence of the General Counsel, (1) In order to further enhance the item satisfies the requirements for trading or the registration criteria to terminate the fast-track review of both application process, the proposed (DTEFs) or the designation criteria or types of applications and (2) to amendments would more completely the core principles (DCMs). In addition, designate an applicant as a DCM subject identify and expand the information the proposed amendments would to conditions. Under the proposed required to be provided by an applicant require that the applicant submit a copy amendment, the Commission would under both the statutory 180-day and of any manual or other document also delegate to the Director of the the expedited 90-day review describing the manner in which the Division of Market Oversight, with the procedures. The proposal would clarify applicant will conduct trade practice, concurrence of the General Counsel, the that the rules required to be included in market, and financial surveillance. authority to stay the running of the 180- all applications are those rules as Based upon experience in reviewing day statutory review period for both defined in Commission Regulation 40.1 DCM applications, the Commission types of applications if they are and would more clearly identify the recognizes that this additional materially incomplete, as is provided documents required to be provided information is necessary for under section 6(a) of the Act. Because pertaining to the applicant’s legal status Commission review of the application one result of the proposed amendments and governance structure. The when determining whether the would be that registration as a DTEF Commission anticipates that such applicant satisfies the requirements for and designation as a DCM would documents would include copies of trading and registration criteria (DTEFs) involve affirmative action on the part of corporate charters, limited liability or the designation criteria and core the Commission, the proposal would corporation or partnership agreements, principles (DCMs). Finally, the rescind the delegation of the authority and the like.20 proposed amendments would eliminate to designate the applicant as a DCM The proposed amendments would the requirement that the applicant subject to conditions. make it clear that all applicants would support requests for confidential Finally, the proposed amendments be required to submit for review an treatment of information included in the would reorganize the sequence of executed or executable copy of any paragraphs in the rules where agreements or contracts entered into or 21 It should be noted that the ‘‘additional appropriate and to make minor word information’’ referred to herein is additional only in changes and deletions in order to clarify 19 See 7 U.S.C. 8(a). the sense that the proposal specifically codifies the the application requirements. The 20 The proposal adds the requirement that DTEF information that must be included in an applications also must include a copy of any application. In fact, Commission staff has been proposal would also delete certain documents describing the applicant’s legal status requesting this type of information from each of the guidance regarding applications for and governance structure. DCM applicants that have applied. designation as that information

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duplicates information available adopted, when considering whether the Related Matters elsewhere in Part 38.22 application satisfies the designation A. The Regulatory Flexibility Act C. Comments and Final Rule criteria and core principles. Commission staff appropriately The Regulatory Flexibility Act (RFA), In response to the proposed considers the materials filed and 5 U.S.C. 601 et seq., requires Federal amendments, the Commission received representations made by an applicant in agencies, in promulgating rules, to comment letters from the Chicago consider the impact of those rules on drawing conclusions as to whether Mercantile Exchange and the Chicago small entities. The rules adopted herein designation or registration is warranted. Board of Trade (CBOT), both of which would affect DCMs and DTEFs. The voiced support for the proposed Subsequent to designation or Commission has previously established amendments. With respect to the registration, the DCM or DTEF may certain definitions of small entities to be proposed application content adopt changes to its rules and used by the Commission in evaluating requirements, however, the CBOT, procedures; however, under the Act, the impact of its rules on small entities suggested that the Commission should DCMs and DTEFs must, on a continuing in accordance with the RFA.25 In its also require submission of documents basis, comply with all designation previous determinations, the detailing the applicant’s plans to offer criteria and core principles (DCMs) and Commission has concluded that DCMs payment for order flow, or other core principles (DTEFs). In and DTEFs are not small entities for the incentives that could encourage wash implementing changes to their business purpose of the RFA.26 trading or compromise the fiduciary plans, DCMs and DTEFs seek In the proposed rules, the responsibilities of intermediaries, as Commission approval or certify Commission solicited comment on well as documentation of plans to allow compliance with the designation criteria whether the proposed amendments or encourage trading off the centralized and core principles, as applicable, as would have a significant impact on a market. The Commission has carefully required under the Act. The substantial number of small entities. considered this suggestion, but does not Commission considers whether to The Commission received no comments believe that the application content approve new rules or rule amendments in response to this request. Accordingly, the Commission hereby determines that requirements need to be expanded to or whether to take action concerning the rules, as adopted herein, will not include this information. certifications when a DCM or DTEF If an applicant’s plans regarding have a significant economic impact on 23 proposes to implement its revised payment for order flow or other 24 a substantial number of small entities. incentive plans are established at the plans. Therefore, the Acting Chairman, on time of the application, it is expected For the reasons cited above, the behalf of the Commission, hereby that they would be included in the Commission does not believe that the certifies, pursuant to 5 U.S.C. 605(b), application because they would be application content requirements need that the proposed amendments will not considered to be rules and the to be expanded to include documents have a significant economic impact on applicant’s proposed rules are required detailing the applicant’s incentive plans a substantial number of small entities. to be submitted as part of the or documentation of plans to allow or B. The Paperwork Reduction Act application. The same is true with encourage trading off the centralized As required by the Paperwork respect to plans to allow or encourage market. After careful review and Reduction Act of 1995, 44 U.S.C. trading off the centralized market, such consideration of the comments received, as block trading. Of course, any 3507(d), the Commission submitted a the Commission has determined to copy of the proposed rule amendments proposal to implement incentive and/or adopt the proposed amendments to the off-centralized market trading plans to the Office of Management and Budget application procedures as written. The after DCM designation or DTEF for its review. The Commission did not registration would have to be submitted Commission continues to encourage receive any public comments relative to to the Commission by the registrant as would-be applicants to consult with its analysis of paperwork burdens rule changes, either seeking Commission staff prior to formally associated with this rulemaking. submitting a DTEF or DCM application Commission approval or certifying C. Cost Benefit Analysis compliance with designation criteria to help ensure that an application, once and core principles (DCM) or with core formally submitted, will be reviewed in Section 15(a) of the Act, as amended principles (DTEF) as required under the a timely manner. by section 119 of the CFMA, requires Act. the Commission to consider the costs and benefits of its action before issuing Although the Commission expects 24 For instance, when reviewing an incentive a new regulation under the Act. By its that an application represents the program proposed to be adopted by a DCM, applicant’s actual business plan at the Commission staff’s regulatory analysis of the terms, section 15(a) does not require the time of its submission, the Commission proposed rule would focus on the manner of Commission to quantify the costs and has never required an applicant to implementation and the potential for distorting benefits of a new regulation or to reveal all of its potential future plans, open, competitive, and efficient trading by determine whether the benefits of the which may be in various stages of facilitating illegal trading practices, such as wash or proposed regulation outweigh its costs. fictitious trading. DCMs are obligated by Core development and indeed may never be Rather, section 15(a) simply requires the Principle 2 to monitor trading for trade practice Commission to ‘‘consider the costs and abuses. Staff would also analyze a plan’s potential 22 benefits’’ of its action. The guidance provided in 17 CFR 38.3(b) is for eroding fiduciary obligations owed by futures discussed more completely in Appendices A and B brokers to customers. Core Principle 12 requires Section 15(a) further specifies that the to Part 38. that DCMs establish and enforce rules that protect costs and benefits of the proposed rule 23 The term ‘‘payment for order flow’’ is more market participants from abusive trading practices shall be evaluated in light of five broad commonly used to describe incentives offered by committed by any party acting as an agent for a areas of market and public concern: (1) securities exchanges or market makers to securities brokers to direct orders to a particular exchange or participant, and in a situation where a broker an over-the-counter (OTC) dealer. Commission staff handles an order that could be executed at more 25 47 FR 18618, 18618–21 (April 30, 1982). generally views these plans as volume discount than one exchange, Commission staff would want 26 47 FR 18618, 18619 (April 30, 1982) programs because their primary purpose is to to ensure that an incentive plan does not (discussing DCMs); 66 FR 42256, 42268 (August 10, enhance volume by discounting transaction costs. compromise the broker’s fiduciary obligations. 2001) (discussing DTEFs).

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Protection of market participants and contract market’s rules that apply to the or a registration criterion (final, the public; (2) efficiency, operation of the derivatives transaction executed copies of such documents competitiveness, and financial integrity execution facility, and a certification by must be submitted prior to registration); of futures markets; (3) price discovery; the contract market that it meets: (E) A copy of any manual or other (4) sound risk management practices; (A) The requirements for trading of document describing, with specificity, and (5) other public interest section 5a(b) of the Act; and the manner in which the applicant will considerations. The Commission may, (B) The criteria for registration under conduct trade practice, market and in its discretion, give greater weight to section 5a(c) of the Act. financial surveillance; any one of the five enumerated areas of (ii) Comply with the core principles (F) A document that describes the concern and may, in its discretion, for operation under section 5a(d) of the manner in which the applicable items in determine that, notwithstanding its Act and the provisions of this part 37. § 37.5(b)(1)(ii)(A) through (E) enable or costs, a particular rule is necessary or (2) Before using the notification empower the applicant to comply with appropriate to protect the public interest procedure of paragraph (a)(1)(i) of this each requirement for trading and or to effectuate any of the provisions or section for registration as a derivatives registration criterion (a regulatory to accomplish any of the purposes of the transaction execution facility, a dormant chart); and Act. contract market, as defined in § 40.1 of (G) To the extent that any of the items The Commission published an this chapter, must reinstate its in § 37.5(b)(1)(ii)(A) through (E) raise analysis of costs and benefits when it designation under § 38.3(a)(3) of this issues that are novel, or for which proposed the rule amendments that chapter. compliance with a requirement for have now been adopted.27 The (b) Application Procedures. (1) trading or condition for registration is Commission did not receive any public Statutory (180-day) review procedures. not self-evident, an explanation of how comments pertaining to the analysis. A board of trade desiring to be that item and the application satisfy the registered as a derivatives transaction requirements for trading and registration List of Subjects execution facility shall file an criteria. (iii) The applicant must identify with 17 CFR Part 37 application for registration with the Secretary of the Commission at its particularity information in the Commodity futures, Commodity Washington, DC, headquarters. Except application that will be subject to a Futures Trading Commission. as provided under the 90-day review request for confidential treatment 17 CFR Part 38 procedures described in paragraph (b)(2) pursuant to § 145.9 of this chapter. of this section, the Commission will (2) Ninety-day review procedures. A Commodity futures, Commodity review the application for registration as board of trade desiring to be registered Futures Trading Commission. a derivatives transaction execution as a derivatives transaction execution ■ In consideration of the foregoing, and facility pursuant to the 180-day facility may request that its application pursuant to the authority contained in timeframe and procedures specified in be reviewed on an expedited basis and the Act, and, in particular, sections 2, 3, section 6(a) of the Act. The Commission that the applicant be registered as a 4, 4c, 5, 5a and 8a of the Act, the shall approve or deny the application derivatives transaction execution Commission hereby amends Chapter I of or, if deemed appropriate, register the facility not later than 90 days after the Title 17 of the Code of Federal applicant as a derivatives transaction date of receipt of the application for Regulations as follows: execution facility subject to conditions. registration by the Secretary of the (i) The applicant must demonstrate Commission. The 90-day period shall PART 37—DERIVATIVES that it satisfies the requirements for begin on the first business day (during TRANSACTION EXECUTION trading and the criteria for registration the business hours defined in § 40.1 of FACILITIES of sections 5a(b) and 5a(c) of the Act, this chapter) that the Commission is in receipt of the application. Unless the ■ 1. The authority citation for Part 37 respectively, and the provisions of this Commission notifies the applicant continues to read as follows: part 37. (ii) The application must include the during the 90-day period that the Authority: 7 U.S.C. 2, 5, 6, 6c, 7a and 12a, following: expedited review has been terminated as amended by the Commodity Futures (A) The derivatives transaction pursuant to § 37.5(c), the Commission Modernization Act of 2000, Appendix E of execution facility’s rules (as defined in will register the applicant as a Pub. L. 106–554, 114 Stat. 2763 (2000). § 40.1 of this chapter); derivatives transaction execution ■ 2. Revise § 37.5 to read as follows: (B) Any technical manuals and other facility during the 90-day period. If guides or instructions for users of such deemed appropriate by the Commission, § 37.5 Procedures for registration. facility, descriptions of any system test the registration may be subject to such (a) Notification by contract markets. procedures, tests conducted or test conditions as the Commission may (1) To operate as a registered derivatives results, descriptions of the trading stipulate. transaction execution facility pursuant mechanism or algorithm used or to be (i) The applicant must demonstrate to section 5a of the Act, a board of trade used by such facility, and contingency that it satisfies the requirements for that is designated as a contract market, or disaster recovery plans; trading and the criteria for registration which is not a dormant contract market (C) A copy of any documents of sections 5a(b) and 5a(c) of the Act, as defined in § 40.1 of this chapter, describing the applicant’s legal status respectively, and the provisions of this must: and governance structure; part 37; (i) Notify the Commission of its intent (D) An executed or executable copy of (ii) The application must include the to so operate by filing with the Secretary any agreements or contracts entered into items described in § 37.5(b)(1)(ii) and of the Commission at its Washington, or to be entered into by the applicant, (iii); and DC, headquarters a copy of the facility’s including partnership or limited (iii) The applicant must not amend or rules (as defined in § 40.1 of this liability company, third-party regulatory supplement the application, except as chapter) or a list of the designated service, or member or user agreements, requested by the Commission or for that enable or empower the applicant to correction of typographical errors, 27 69 FR 53367, 53370 (September 1, 2004). comply with a requirement for trading renumbering or other nonsubstantive

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revisions, during the 90-day review election, from exercising the authority section 5(d) of the Act and the period. delegated in paragraph (e)(1) of this provisions of this part 38. (c) Termination of 90-day review. (1) section. (ii) The application must include the During the 90-day period for review (f) Request for withdrawal of following: pursuant to paragraph (b)(2) of this application for registration. An (A) A copy of the applicant’s rules (as section, the Commission shall notify the applicant for registration may withdraw defined in § 40.1 of this chapter) and applicant seeking registration that the its application submitted pursuant to any technical manuals, other guides or Commission is terminating review paragraph (b)(1) or (b)(2) of this section instructions for users of, or participants under this section, and will review the by filing such a request with the in, the market, including minimum application under the 180-day time Commission at its Washington, DC, financial standards for members or period and procedures of section 6(a) of headquarters. Withdrawal of an market participants; the Act, if it appears to the Commission application for registration shall not (B) A description of the trading that the application: affect any action taken or to be taken by system, algorithm, security and access (i) Is materially incomplete; the Commission based upon actions, limitation procedures with a timeline (ii) Fails in form or substance to meet activities or events occurring during the for an order from input through the requirements of this part; time that the application for registration settlement, and a copy of any system (iii) Raises novel or complex issues was pending with the Commission. test procedures, tests conducted, test that require additional time for review; (g) Request for vacation of results and contingency or disaster or registration. A registered derivatives recovery plans; (iv) Is amended or supplemented in a transaction execution facility may (C) A copy of any documents manner that is inconsistent with vacate its registration under section 7 of describing the applicant’s legal status § 37.5(b)(2)(iii). the Act by filing such a request with the and governance structure, including (2) The Commission shall also Commission at its Washington, DC, governance fitness information; terminate review under this section if headquarters. Vacation of registration (D) An executed or executable copy of requested in writing to do so by the shall not affect any action taken or to be any agreements or contracts entered into applicant. taken by the Commission based upon or to be entered into by the applicant, (3) The termination notification shall actions, activities or events occurring including partnership or limited identify the deficiencies in the during the time that the facility was liability company, third-party regulatory application that render it incomplete, registered by the Commission. service, or member or user agreements, the manner in which the application (h) Guidance for applicants. that enable or empower the applicant to fails to meet the requirements of this Appendix A to this part provides comply with a designation criterion or part, the novel or complex issues that guidance on how the registration criteria core principle (final, executed copies of require additional time for review, or in section 5a(c) of the Act can be such documents must be submitted the amendment or supplement that is satisfied. prior to designation); inconsistent with § 37.5(b)(2)(iii). (E) A copy of any manual or other (d) Reinstatement of dormant PART 38—DESIGNATED CONTRACT document describing, with specificity, registration. Before listing products for MARKETS the manner in which the applicant will trading, a dormant derivatives conduct trade practice, market and ■ transaction execution facility as defined 1. The authority citation for Part 38 financial surveillance; in § 40.1 must reinstate its registration continues to read as follows: (F) A document that describes the under the procedures of paragraphs Authority: 7 U.S.C. 2, 5, 6, 6c, 7 and 12a, manner in which the applicable items in (a)(1), (b)(1) or (b)(2) of this section; as amended by the Commodity Futures § 38.3(a)(1)(ii)(A) through (E) enable or provided, however, that an application Modernization Act of 2000, Appendix E of empower the applicant to comply with for reinstatement may rely upon Pub. L. 106–554, 114 Stat. 2763 (2000). each designation criterion and core previously submitted materials that still ■ 2. Revise § 38.3 to read as follows: principle (a regulatory chart); and pertain to, and accurately describe, (G) To the extent that any of the items current conditions. § 38.3 Procedures for designation. in § 38.3(a)(1)(ii)(A) through (E) raise (e) Delegation of authority. (1) The (a) Application procedures. (1) issues that are novel, or for which Commission hereby delegates, until it Statutory (180-day) review procedures. compliance with a designation criterion orders otherwise, to the Director of the A board of trade desiring to be or a core principle is not self-evident, an Division of Market Oversight or such designated as a contract market shall file explanation of how that item and the other employee or employees as the an application for designation with the application satisfy the designation Director may designate from time to Secretary of the Commission at its criteria or the core principles. time, with the concurrence of the Washington, DC, headquarters. Except (iii) The applicant must identify with General Counsel or the General as provided under the 90-day review particularity information in the Counsel’s delegate, authority to notify procedures described in paragraph (a)(2) application that will be subject to a the applicant seeking registration under of this section, the Commission will request for confidential treatment section 6(a) of the Act that the review the application for designation pursuant to § 145.9 of this chapter. application is materially incomplete and as a contract market pursuant to the (2) Ninety-day review procedures. A the running of the 180-day period is 180-day timeframe and procedures board of trade desiring to be designated stayed or that the 90-day review under specified in section 6(a) of the Act. The as a contract market may request that its paragraph (b)(2) of this section is Commission shall approve or deny the application be reviewed on an terminated. application or, if deemed appropriate, expedited basis and that the applicant (2) The Director may submit to the designate the applicant as a contract be designated as a contract market not Commission for its consideration any market subject to conditions. later than 90 days after the date of matter that has been delegated in this (i) The applicant must demonstrate receipt of the application for paragraph. compliance with the criteria for designation by the Secretary of the (3) Nothing in this paragraph designation of section 5(b) of the Act, Commission. The 90-day period shall prohibits the Commission, at its the core principles for operation of begin on the first business day (during

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the business hours defined in § 40.1 of provided, however, that an application Issued in Washington, DC, on November this chapter) that the Commission is in for reinstatement may rely upon 12, 2004, by the Commission. receipt of the application. Unless the previously submitted materials that still Jean A. Webb, Commission notifies the applicant pertain to, and accurately describe, Secretary of the Commission. during the 90-day period that the current conditions. [FR Doc. 04–25614 Filed 11–19–04; 8:45 am] expedited review has been terminated (d) Delegation of authority. (1) The BILLING CODE 6351–01–P pursuant to § 38.3(b), the Commission Commission hereby delegates, until it will designate the applicant as a orders otherwise, to the Director of the contract market during the 90-day DEPARTMENT OF HEALTH AND Division of Market Oversight or such period. If deemed appropriate by the HUMAN SERVICES Commission, the designation may be other employee or employees as the subject to such conditions as the Director may designate from time to Food and Drug Administration Commission may stipulate. time, with the concurrence of the (i) The applicant must demonstrate General Counsel or the General 21 CFR Part 522 compliance with the criteria for Counsel’s delegate, authority to notify designation of section 5(b) of the Act, the applicant seeking designation under Implantation or Injectable Dosage the core principles for operation of section 6(a) of the Act that the Form New Animal Drugs; Trenbolone section 5(d) of the Act and the application is materially incomplete and Acetate and Estradiol Benzoate provisions of this part 38; the running of the 180-day period is AGENCY: Food and Drug Administration, (ii) The application must include the stayed or that the 90-day review under HHS. items described in § 38.3(a)(1)(ii) and paragraph (a)(2) of this section is ACTION: Final rule. (iii); and terminated. (iii) The applicant must not amend or SUMMARY: (2) The Director may submit to the The Food and Drug supplement the application, except as Administration (FDA) is amending the Commission for its consideration any requested by the Commission or for animal drug regulations to reflect correction of typographical errors, matter that has been delegated in this approval of a supplemental new animal renumbering or other nonsubstantive paragraph. drug application (NADA) filed by Fort revisions, during the 90-day review (3) Nothing in this paragraph Dodge Animal Health, Division of period. prohibits the Commission, at its Wyeth. The supplemental NADA (b) Termination of 90-day review. (1) election, from exercising the authority provides for the addition of statements During the 90-day period for review delegated in paragraph (d)(1) of this to labeling of subcutaneous implants pursuant to paragraph (a)(2) of this section. containing trenbolone acetate and section, the Commission shall notify the estradiol benzoate warning against the applicant seeking designation that the (e) Request for withdrawal of application for designation. An use of these products in calves to be Commission is terminating review processed for veal. under this section, and will review the applicant for designation may withdraw its application submitted pursuant to DATES: This rule is effective November application under the 180-day time 22, 2004. period and procedures of section 6(a) of paragraph (a)(1) or (a)(2) of this section FOR FURTHER INFORMATION CONTACT: Eric the Act, if it appears to the Commission by filing such a request with the S. Dubbin, Center for Veterinary that the application: Commission at its Washington, DC, Medicine (HFV–126), Food and Drug (i) Is materially incomplete; headquarters. Withdrawal of an Administration, 7500 Standish Pl., (ii) Fails in form or substance to meet application for designation shall not Rockville, MD 20855, 301–827–0232, e- the requirements of this part; affect any action taken or to be taken by mail: [email protected]. (iii) Raises novel or complex issues the Commission based upon actions, SUPPLEMENTARY INFORMATION: Fort that require additional time for review; activities or events occurring during the Dodge Animal Health, Division of or time that the application for designation Wyeth, 800 Fifth St. NW., Fort Dodge, (iv) Is amended or supplemented in a was pending with the Commission. manner that is inconsistent with IA 50501, filed a supplement to NADA § 38.3(a)(2)(iii). (f) Request for vacation of 141–043 for SYNOVEX PLUS (2) The Commission shall also designation. A designated contract (trenbolone acetate and estradiol terminate review under this section if market may vacate its designation under benzoate) and SYNOVEX CHOICE requested in writing to do so by the section 7 of the Act by filing such a (trenbolone acetate and estradiol applicant. request with the Commission at its benzoate), two subcutaneous implants (3) The termination notification shall Washington, DC, headquarters. Vacation products used in steers and heifers fed identify the deficiencies in the of designation shall not affect any action in confinement for slaughter for application that render it incomplete, taken or to be taken by the Commission increased rate of weight gain and/or the manner in which the application based upon actions, activities or events improved feed efficiency. The fails to meet the requirements of this occurring during the time that the supplemental NADA provides for the part, the novel or complex issues that facility was designated by the addition of statements to labeling require additional time for review, or Commission. warning against the use of these the amendment or supplement that is products in calves to be processed for inconsistent with § 38.3(a)(2)(iii). (g) Guidance for applicants. veal. The supplemental application is (c) Reinstatement of dormant Appendix A to this part provides approved as of October 28, 2004, and designation. Before listing or relisting guidance on how the criteria for the regulations are amended in 21 CFR products for trading, a dormant designation under section 5(b) of the 522.2478 to reflect the approval. The designated contract market as defined in Act can be satisfied. Appendix B to this basis of approval is discussed in the § 40.1 of this chapter must reinstate its part provides guidance on how the core freedom of information summary. designation under the procedures of principles of section 5(d) of the Act can In accordance with the freedom of paragraph (a)(1) or (a)(2) of this section; be satisfied. information provisions of 21 CFR part

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20 and 21 CFR 514.11(e)(2)(ii), a subsequent breeding dairy or beef summary of safety and effectiveness summary of safety and effectiveness replacement heifers. Safety and data and information submitted to data and information submitted to effectiveness have not been established support approval of this application support approval of this application in veal calves. A withdrawal period has may be seen in the Division of Dockets may be seen in the Division of Dockets not been established for this product in Management (HFA–305), Food and Drug Management (HFA–305), Food and Drug preruminating calves. Do not use in Administration, 5630 Fishers Lane, rm. Administration, 5630 Fishers Lane, rm. calves to be processed for veal. 1061, Rockville, MD 20852, between 9 1061, Rockville, MD 20852, between 9 Dated: November 10, 2004. a.m. and 4 p.m., Monday through a.m. and 4 p.m., Monday through Steven D. Vaughn, Friday. Friday. The agency has determined under 21 The agency has determined under 21 Director, Office of New Animal Drug Evaluation, Center for Veterinary Medicine. CFR 25.33(a)(1) that this action is of a CFR 25.33(a)(1) that this action is of a [FR Doc. 04–25878 Filed 11–19–04; 8:45 am] type that does not individually or type that does not individually or cumulatively have a significant effect on BILLING CODE 4160–01–S cumulatively have a significant effect on the human environment. Therefore, the human environment. Therefore, neither an environmental assessment neither an environmental assessment DEPARTMENT OF HEALTH AND nor an environmental impact statement nor an environmental impact statement HUMAN SERVICES is required. is required. This rule does not meet the definition This rule does not meet the definition Food and Drug Administration of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because it is a rule of ‘‘particular applicability.’’ it is a rule of ‘‘particular applicability.’’ 21 CFR Part 522 Therefore, it is not subject to the Therefore, it is not subject to the congressional review requirements in 5 congressional review requirements in 5 Implantation or Injectable Dosage U.S.C. 801–808. U.S.C. 801–808. Form New Animal Drugs; Estradiol List of Subjects in 21 CFR Part 522 List of Subjects in 21 CFR Part 522 AGENCY: Food and Drug Administration, Animal drugs. Animal drugs. HHS. ■ Therefore, under the Federal Food, ■ Therefore, under the Federal Food, ACTION: Final rule. Drug, and Cosmetic Act and under Drug, and Cosmetic Act and under the SUMMARY: The Food and Drug authority delegated to the Commissioner authority delegated to the Commissioner Administration (FDA) is amending the of Food and Drugs and redelegated to the of Food and Drugs and redelegated to the animal drug regulations to reflect Center for Veterinary Medicine, 21 CFR Center for Veterinary Medicine, 21 CFR approval of a supplemental new animal part 522 is amended as follows: part 522 is amended as follows: drug application (NADA) filed by Ivy PART 522—IMPLANTATION OR PART 522–IMPLANTATION OR Laboratories, Division of Ivy Animal INJECTABLE DOSAGE FORM NEW INJECTABLE DOSAGE FORM NEW Health, Inc. The supplemental NADA ANIMAL DRUGS ANIMAL DRUGS provides for the addition of statements to labeling of subcutaneous implants ■ 1. The authority citation for 21 CFR containing estradiol warning against the ■ 1. The authority citation for 21 CFR part 522 continues to read as follows: use of these products in calves to be part 522 continues to read as follows: Authority: 21 U.S.C. 360b. processed for veal. Authority: 21 U.S.C. 360b. ■ 2. Section 522.2478 is amended by DATES: This rule is effective November ■ 2. Section 522.840 is revised to read as revising paragraphs (d)(1)(i)(C), 22, 2004. follows: (d)(1)(ii)(C), and (d)(2)(iii) to read as FOR FURTHER INFORMATION CONTACT: Eric follows: S. Dubbin, Center for Veterinary § 522.840 Estradiol. Medicine (HFV–126), Food and Drug (a) Specifications. Each silicone § 522.2478 Trenbolone acetate and Administration, 7500 Standish Pl., rubber implant contains 25.7 or 43.9 estradiol benzoate. Rockville, MD 20855, 301–827–0232, e- milligrams (mg) estradiol and is coated * * * * * mail: [email protected]. with not less than 0.5 mg (d) * * * oxytetracycline powder. (1) * * * SUPPLEMENTARY INFORMATION: Ivy (i) * * * Laboratories, Division of Ivy Animal (b) Sponsor. See No. 021641 in (C) Limitations. Implant Health, Inc., 8857 Bond St., Overland § 510.600(c) of this chapter. subcutaneously in ear only. Safety and Park, KS 66214, filed a supplement to (c) Related tolerances. See § 556.240 effectiveness have not been established NADA 118–123 for ENCORE (estradiol) of this chapter. in veal calves. A withdrawal period has and COMPUDOSE (estradiol). The (d) Conditions of use. For not been established for this product in supplemental NADA provides for the implantation in steers and heifers as preruminating calves. Do not use in addition of statements to labeling follows: calves to be processed for veal. warning against the use of these (1) Amount. Insert one 25.7-mg (ii) * * * products in calves to be processed for implant every 200 days; insert one 43.9- (C) Limitations. Implant veal. The supplemental application is mg implant every 400 days. subcutaneously in ear only. Safety and approved as of October 28, 2004, and (2) Indications for use. For increased effectiveness have not been established the regulations are amended in 21 CFR rate of weight gain in suckling and in veal calves. A withdrawal period has 522.840 to reflect the approval and a pastured growing steers; for improved not been established for this product in current format. The basis of approval is feed efficiency and increased rate of preruminating calves. Do not use in discussed in the freedom of information weight gain in confined steers and calves to be processed for veal. summary. heifers. No additional effectiveness may (2) * * * In accordance with the freedom of be expected from reimplanting in less (iii) Limitations. Implant information provisions of 21 CFR part than 200 days for the 25.7-mg implant subcutaneously in ear only. Not for 20 and 21 CFR 514.11(e)(2)(ii), a or 400 days for the 43.9-mg implant.

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(3) Limitations. For subcutaneous ear Agency, Mail code: OAWT–107, 1200 I. General Information implantation in steers and heifers only. Sixth Ave., Seattle, Washington 98101. • The information in this section is Safety and effectiveness have not been Hand Delivery: Environmental organized as follows: established in veal calves. A withdrawal Protection Agency, Office of Air, Waste, period has not been established for this and Toxics, OAWT–107, 9th Floor, 1200 A. What Should I Consider as I Prepare My Sixth Ave., Seattle, Washington 98101. Comments for EPA? product in preruminating calves. Do not B. What SIP Amendments Is EPA Approving? use in calves to be processed for veal. Such deliveries are only accepted C. What Are I/M Programs? Dated: November 10, 2004. during normal hours of operation, and D. What Changes Have Been Made to Steven D. Vaughn, special arrangements should be made Oregon’s I/M Program That EPA Is for deliveries of boxed information. Approving? Director, Office of New Animal Drug Instructions: Direct your comments to E. What Is the Enhanced Test Waiver and Evaluation, Center for Veterinary Medicine. Docket ID No. OR–04–002. EPA’s policy Why Is It Needed? [FR Doc. 04–25877 Filed 11–19–04; 8:45 am] is that all comments received will be F. What Is a Qualified Household for the BILLING CODE 4160–01–S included in the public docket without Enhanced Test Waiver? G. Will This Waiver Affect Air Quality? change, including any personal H. What Is On-Board Diagnostic (OBD) information provided, unless the ENVIRONMENTAL PROTECTION Testing? comment includes information claimed I. What Is On-Site Vehicle Testing? AGENCY to be Confidential Business Information J. What Is Clean-Screen Testing? K. What Is the Self-Service Test? 40 CFR Part 52 (CBI) or other information whose disclosure is restricted by statute. Do L. Are Clean Screen Testing and Self-Service [OR–04–002; FRL–7835–2] not submit information that you Testing Required Tests? M. Why Is EPA Taking No Action on Clean consider to be CBI or otherwise Screen Testing and the Self Service Test? Approval and Promulgation of State protected through regulations.gov, or e- Implementation Plans: Oregon N. How Will These Approvals Change mail. The federal regulations.gov Web Ongoing Air Quality Planning in AGENCY: Environmental Protection site is an ‘‘anonymous access’’ system, Oregon? which means EPA will not know your Agency (EPA). A. What Should I Consider as I Prepare identity or contact information unless ACTION: Direct final rule. My Comments for EPA? you provide it in the body of your SUMMARY: The EPA approves numerous comment. If you send an e-mail 1. Submitting Confidential Business revisions to the Oregon State comment directly to EPA without going Information (CBI). Do not submit this Implementation Plan (SIP) in the State through regulations.gov, your e-mail information to EPA through of Oregon Administrative Rules (OAR) address will be automatically captured regulations.gov or e-mail. Clearly mark relating to the inspection and and included as part of the comment the part or all of the information that maintenance (I/M) of motor vehicles. that is placed in the public docket and you claim to be CBI. For CBI These revisions were submitted to EPA made available on the Internet. If you information in a disk or CD ROM that by the Director of the Oregon submit an electronic comment, EPA you mail to EPA, mark the outside of the Department of Environmental Quality recommends that you include your disk or CD ROM as CBI and then (ODEQ) on November 5, 1999, name and other contact information in identify electronically within the disk or September 15, 2000, November 27, the body of your comment and with any CD ROM the specific information that is 2000, January 10, 2003, and April 22, disk or CD-ROM you submit. If EPA claimed as CBI. In addition to one 2004. cannot read your comment due to complete version of the comment that The revisions were submitted in technical difficulties and cannot contact includes information claimed as CBI, a accordance with the requirements of you for clarification, EPA may not be copy of the comment that does not section 110 of the Clean Air Act able to consider your comment. contain the information claimed as CBI (hereinafter CAA or Act). Electronic files should avoid the use of must be submitted for inclusion in the EPA is also approving the re- special characters, any form of public docket. Information so marked numbering of the Motor Vehicle section encryption, and be free of any defects or will not be disclosed except in of the Oregon Administrative Rules. viruses. For additional instructions on accordance with procedures set forth in Two non-SIP related rules are also submitting comments, go to A. General 40 Code of Federal Regulations (CFR) removed from the SIP in this action. Information of the SUPPLEMENTARY part 2. DATES: This direct final rule will be INFORMATION section of this document. 2. Tips for Preparing Your Comments. effective on January 21, 2005, without Docket: Publicly available docket When submitting comments, remember further notice, unless EPA receives materials are available in hard copy at to: • comment by December 22, 2004. If the Office of Air, Waste, and Toxics, Identify the rulemaking by docket comments are received, EPA will EPA Region 10, Mail code: OAQ–107, number and other identifying publish a timely withdrawal of the 1200 Sixth Ave., Seattle, Washington information (subject heading, Federal direct final rule in the Federal Register 98101; open from 8 a.m.—4:30 p.m. Register date and page number). • informing the public that the rule will Monday through Friday, excluding legal Follow directions—The agency may not take effect. holidays. The telephone number is (206) ask you to respond to specific questions ADDRESSES: Submit your comments, 553–1463. or organize comments by referencing a CFR part or section number. identified by Docket ID No. OR–04–002, FOR FURTHER INFORMATION CONTACT: • Explain why you agree or disagree; by one of the following methods: Wayne Elson, Office of Air, Waste and • suggest alternatives and substitute Federal eRulemaking Portal: http:// Toxics, EPA Region 10, Mail code: www.regulations.gov. Follow the on-line language for your requested changes. OAWT–107, 1200 Sixth Avenue, Seattle • Describe any assumptions and instructions for submitting comments. WA 98101, telephone number: (206) • E-mail: [email protected]. provide any technical information and/ • Fax: (206)–553–0110. 553–1463, or e-mail address: or data that you used. • Mail: Office of Air, Waste, and [email protected]. • If you estimate potential costs or Toxics, Environmental Protection SUPPLEMENTARY INFORMATION: burdens, explain how you arrived at

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your estimate in sufficient detail to • Explain your views as clearly as B. What SIP Amendments Is EPA allow for it to be reproduced. possible, avoiding the use of profanity Approving? • Provide specific examples to or personal threats. • Make sure to submit your The following table outlines the illustrate your concerns, and suggest comments by the comment period submittals EPA received and is alternatives. deadline identified. approving in this action:

Date of submittal to EPA Items revised

11–5–1999 ...... —Renumbering of the Motor Vehicles Rule from Division 24 to Division 256 of the OAR. 9–15–2000 ...... Submitted rule changes were superceded by rule revisions in later submittals listed below. 11–27–2000 ...... —OAR 340–256–0355 Emissions Control Test Method for OBD Test Program. —OAR 340–256–0440 Criteria for Qualifications of Persons Eligible to Inspect Motor Vehicles and Motor Vehicle Pollution Control Systems and Execute Certificates. —OAR 340–256–0465 Test Equipment Licensing Criteria for OBD Test Program. 1–10–2003 ...... —OAR 340–256–0356 Emissions Control Test Method for On-Site Vehicle Testing for Automobile Dealerships. 4–22–2004 ...... —OAR 340–256–0010 Definitions. —OAR 340–256–0300 Scope. —SIP Volume 2, Section 5.4 Motor Vehicle Inspection and Maintenance.

The SIP revisions cover the addition place. Therefore, EPA is taking no emissions test. Qualifications for the of new rules and revisions to existing action on these rules at this time. waiver are based on household income. rules for I/M requirements in Division The most salient aspects of approved EPA is also approving an on-site 256 Motor Vehicles (formerly Division rule changes include: revised rules for vehicle testing program for used 024). The submittal dated September 15, testing requirements based on vehicle vehicles sold by auto dealers in the 2000 contained rules that were model year, the introduction of the OBD Portland and Medford area. This is a subsequently revised in later ODEQ test for 1996 and newer vehicles in the voluntary program that allows on-site submittals. Only the current version of Portland and Medford area vehicle testing by ODEQ employees for each rule is being approved. inspection programs, providing a waiver manufacturer franchised auto dealers In addition to the rule revisions from the enhanced vehicle inspection only. submitted by ODEQ, EPA is also testing requirements for vehicles owned approving rule renumbering for the by qualified households in the Portland This approval also includes revisions Motor Vehicle Division 256 of the OAR. vehicle inspection area, establishing an made to the criteria for qualifications for On November 5, 1999, ODEQ submitted on-site vehicle testing program for used persons eligible to inspect motor a complete rule renumbering to EPA for vehicles sold by auto dealers in the vehicles to include qualifications for approval into the SIP, with an effective Portland and Medford areas, and revised administering testing for new vehicle date under State law of October 14, rules for qualifications for testing tests and test methods. 1999. EPA approved portions of this personnel. SIP Volume 2, Section 5.4 is a submittal, but did not take action on programmatic description of the Oregon Division 256 Motor Vehicles since the C. What Are I/M Programs? I/M program including boundaries, rules in this division had been In local areas I/M programs are performance standards, network type, subsequently revised by ODEQ. The rule designed to reduce motor vehicle tools, test frequency, quality control, renumbering is non-substantive. emissions by requiring that vehicles waivers, and compliance, data EPA is removing the old rules periodically pass a tailpipe emissions (formerly Division 024) from the current test or, depending on the model year, a collection, inspector training, and repair SIP that are replaced and approved check of the OBD system. Vehicles effectiveness. This description has been under the renumbering. emissions are reduced when vehicles updated to reflect the changes to the EPA is removing previously approved are repaired in order to pass these tests. program. EPA reviewed these changes rules relating to noise emissions from and will approve this section. D. What Changes Have Been Made to the SIP in this action. These noise Oregon’s I/M Program That EPA Is E. What Is the Enhanced Test Waiver emissions rules were incorrectly Approving? and Why Is It Needed? approved into the SIP under a previous action. EPA also is removing the fee Current SIP approved rules include This provision allows the waiver of schedule for motor vehicle inspections. the basic and enhanced test some households from the enhanced Excess emissions rule revisions by the requirements. This approval adds the vehicle emissions test. The waiver Lane Regional Air Pollution Authority OBD test as a requirement for certain program is only for the Portland VI (LRAPA) were submitted with the vehicles in the Portland Vehicle Area. The waiver would be granted January 10, 2003 submittal. EPA is Inspection (VI) Area and Medford- based on household income. These taking no action on the Excess Ashland Air Quality Maintenance Area households would still be required to Emissions Rules at this time. (AQMA). The emission control test take the basic emissions test. This ODEQ submitted two new rules for method for the OBD test and OBD test waiver benefits households by reducing testing methods which include Clean equipment licensing criteria are also vehicle repair costs to meet emission included in these rule changes. Screen and Self Service testing. The standards. In a two-year pilot program, rules state the possibility of This approval also includes a waiver repair costs to meet the enhanced implementation of this testing, but from the enhanced vehicle test for vehicle tests were higher than the cost procedures and methods for qualified households in the Portland VI of repairs to comply with the basic implementation have not been Area. Households eligible for the waiver emissions test. developed and are currently not in would still be required to take the basic

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F. What Is a Qualified Household for the testing may be administered using later submitting the procedures to EPA Enhanced Test Waiver? several methods. One technique would for approval into the SIP. optically measure emissions using A qualified household, under the N. How Will These Approvals Change ultraviolet and infrared light beams enhanced test waiver program, has a net Ongoing Air Quality Planning in income of less than or equal to 1.3 times directed across lane of traffic. Another Oregon? the Federal Poverty Guidelines for the technique would intercept a broadcast ODEQ is proposing revisions to the year 2000. After the year 2000, the electronic OBD signal from a vehicle Oregon SIP to maintain air quality in annual income requirement will be whose owner has volunteered for the compliance with federal air quality adjusted annually, using the Oregon program. standards for carbon monoxide and Consumer Price Index for the Portland The clean screening test would be ozone. The I/M program is an important Metro Regional area. administered just prior to registration expiration. Clean vehicles would be and integral part of the ongoing air G. Will This Waiver Affect Air Quality? issued a certificate of compliance and quality control measures of the SIP. EPA In order to amend the SIP to include would not be required to undergo the approval will support and strengthen this provision, the ODEQ must traditional vehicle inspection test at a the I/M program. These rule changes provide additional demonstrate that the waiver program testing facility. vehicle testing options that could make will not result in an exceedance of air The clean-screen testing rule requires quality standards. The information vehicle testing more convenient. ODEQ to establish specific testing Improvements in customer service collected from a two-year pilot waiver processes before implementing this type program has shown that the number of could increase participation in the I/M of testing. This testing program is program. vehicles granted waivers under this developmental and the rule requires program would have a negligible effect ODEQ develop documentation that this II. Summary of Action on air quality. method would provide equal or greater A. EPA Is Approving the Following H. What Is On-Board Diagnostic (OBD) accuracy in identifying vehicles that Sections Into the SIP Testing? would pass or fail the required emission test. Chapter 340–256 Motor Vehicles OBD is a term describing a vehicle’s Sections –0010, –0200, –0300, –0310, on-board computer that monitors how K. What Is the Self-Service Test? –0330, –0340, –0350, –0355, –0356, certain vehicle components function. The self-service testing would provide –0370, –0380, –0390, –0400, –0410, The OBD system alerts drivers of a testing method for the vehicle owner –0420, –0440, –0450, –0460, –0465, and malfunctions in systems that affect or owner’s representative to perform the –0470 and SIP Volume 2, Section 5.4. exhaust emissions such as the oxygen emissions test at a designated location. sensor, exhaust gas re-circulation B. EPA Is Removing the Following Old The test performed will be either a Sections From the Current SIP Because system, fuel system, catalytic converter, remote sensing optical quantification of etc. The OBD system continuously They Are Replaced by the Rules in tailpipe pollutants, a remote or Section A Above monitors engine systems and detects computer connected OBD test, or other Chapter 340 Division 024 Sections problems early. means as developed by ODEQ. If a vehicle’s computer system detects –0100, –0300, –0301, –0305, –0306, a malfunction, the computer stores a The self-service test rule requires –0308, –0309, –0312, –0318, –0320, code that can aid in diagnosis of vehicle ODEQ to establish specific testing –0325, –0330, –0332, –0335, –0340, problems that can affect air quality. processes before implementing this type –0355, –0357, and –0360 and SIP During emissions testing, a computer of testing. This testing program is Volume 2, Section 5.4. checks for these stored trouble codes by developmental and the rule requires C. EPA Is Removing the Following Rules downloading the vehicle’s computer, ODEQ develop documentation that this From the Current IBR’d SIP Because and the dashboard malfunction light is method would provide equal or greater They Are Not Appropriate for Inclusion also checked. accuracy in identifying vehicles that would pass or fail the required emission in the SIP I. What Is On-Site Vehicle Testing? test. Chapter 340 Division 024 Sections On-site testing is vehicle emissions L. Are Clean Screen Testing and Self- 0314 Motorcycle Noise Emission testing that takes place at an auto Service Testing Required Tests? Control Test Method, 0337 Motor dealer’s location, instead of at a ODEQ Vehicle Propulsion Exhaust Noise vehicle testing facility. ODEQ will No. Both testing options are Standards, and 0307 Motor Vehicle perform the on-site testing using a voluntary, and, if implemented, would Inspection Program Fee Schedule. traveling van equipped with OBD be offered as an alternative to the D. EPA Is Taking No Action at This testing equipment. The OBDII test will standard emissions testing at ODEQ Time on the Following Rules be given to 1996 and newer model year testing facilities. Vehicle owners would vehicles equipped with OBDII systems. still be able to have their vehicles tested Lane Regional Air Pollution Authority If a vehicle fails the test, the vehicle at the ODEQ test centers. Excess Emissions Rules, OAR 340–256– must be repaired before being re-tested. M. Why Is EPA Taking No Action on 0357 Emissions Control Test Method for Auto dealers may elect to take Clean Screen Testing and the Self Clean Screen Testing Program, and 340– vehicles to ODEQ centralized testing Service Test? 356–0358 Emissions Control Test locations if they decide not to Method for Self-Service Testing participate in the on-site testing. EPA is taking no action on these rules Program. at this time because procedures for these EPA is publishing this rule without J. What Is Clean-Screen Testing? tests have not yet been developed, and prior proposal because the Agency The clean screen test evaluates the testing programs are not ready to views this as a noncontroversial vehicle emissions while on the roadway implement on a wide scale. However, submittal and anticipates no adverse to determine whether a vehicle has this does not prevent ODEQ from comments. However, in the proposed acceptable emissions. Clean screen developing these testing programs and rules section of this Federal Register

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publication, EPA is publishing a IV. Scope of EPA Approval Administrator certifies that this rule separate document that will serve as the Oregon has not demonstrated will not have a significant economic proposal to approve the SIP revision authority to implement and enforce the impact on a substantial number of small should adverse comments be filed. This Oregon Administrative Rules within entities under the Regulatory Flexibility rule will be effective January 21, 2005, ‘‘Indian Country’’ as defined in 18 Act (5 U.S.C. 601 et seq.). Because this without further notice unless the U.S.C. 1151.1 1 ‘‘Indian country’’ is rule approves pre-existing requirements Agency receives adverse comments by defined under 18 U.S.C. 1151 as: (1) All under state law and does not impose December 22, 2004. land within the limits of any Indian any additional enforceable duty beyond If the EPA receives such comments, reservation under the jurisdiction of the that required by state law, it does not then EPA will publish a notice United States Government, contain any unfunded mandate or significantly or uniquely affect small withdrawing the final rule in the notwithstanding the issuance of any governments, as described in the Federal Register informing the public patent, and including rights-of-way Unfunded Mandates Reform Act of 1995 that the rule will not take effect. All running through the reservation, (2) all public comments received will then be (Pub. L. 104–4). dependent Indian communities within This rule also does not have tribal addressed in a subsequent final rule the borders of the United States, based on the proposed rule. The EPA implications because it will not have a whether within the original or substantial direct effect on one or more will not institute a second comment subsequently acquired territory thereof, period on this action. Parties interested Indian tribes, on the relationship and whether within or without the between the Federal Government and in commenting should do so at this limits of a State, and (3) all Indian time. If no such comments are received, Indian tribes, or on the distribution of allotments, the Indian titles to which power and responsibilities between the the public is advised that this rule will have not been extinguished, including be effective on January 21, 2005, and no Federal Government and Indian tribes, rights-of-way running through the same. as specified by Executive Order 13175 further action will be taken on the Under this definition, EPA treats as proposed rule. Please note that if we (65 FR 67249, November 9, 2000). This reservations trust lands validly set aside action also does not have federalism receive adverse comment on an for the use of a Tribe even if the trust amendment, paragraph, or section of implications because it does not have lands have not been formally designated substantial direct effects on the States, this rule and if that provision may be as a reservation. Therefore, this SIP severed from the remainder of the rule, on the relationship between the national approval does not extend to ‘‘Indian government and the States, or on the we may adopt as final those provisions Country’’ in Oregon. See CAA sections distribution of power and of the rule that are not the subject of an 110(a)(2)(A) (SIP shall include responsibilities among the various adverse comment. enforceable emission limits), levels of government, as specified in III. Oregon Notice Provision 110(a)(2)(E)(i) (State must have adequate Executive Order 13132 (64 FR 43255, authority under State law to carry out August 10, 1999). This action merely During EPA’s review of a SIP revision SIP), and 172(c)(6) (nonattainment SIPs approves a state rule implementing a involving Oregon’s statutory authority, a shall include enforceable emission Federal standard, and does not alter the problem was detected which affected limits). This is consistent with EPA’s relationship or the distribution of power the enforceability of point source permit previous approval of Oregon’s PSD and responsibilities established in the limitations. EPA determined that, program, in which EPA specifically Clean Air Act. This rule also is not because the five-day advance notice disapproved the program for sources subject to Executive Order 13045 provision required by ORS 468.126(1) within Indian Reservations in Oregon ‘‘Protection of Children from (1991) bars civil penalties from being because the State had not shown it had Environmental Health Risks and Safety imposed for certain permit violations, authority to regulate such sources. See Risks’’ (62 FR 19885, April 23, 1997), ORS 468 fails to provide the adequate 40 CFR 52.1987(c). It is also consistent because it is not economically enforcement authority that a state must with EPA’s approval of Oregon’s title V significant. demonstrate to obtain SIP approval, as operating permits program. See 59 FR In reviewing SIP submissions, EPA’s specified in section 110 of the Clean Air 61820, 61827 (December 2, 1994) role is to approve state choices, Act and 40 CFR 51.230. Accordingly, (interim approval does not extend to provided that they meet the criteria of the requirement to provide such notice Indian Country); 60 FR 50106, 50106 the Clean Air Act. In this context, in the would preclude Federal approval of a (September 28, 1995) (full approval does absence of a prior existing requirement section 110 SIP revision. not extend to Indian Country). for the State to use voluntary consensus To correct the problem the Governor standards (VCS), EPA has no authority V. Statutory and Executive Order of Oregon signed into law new to disapprove a SIP submission for Reviews legislation amending ORS 468.126 on failure to use VCS. It would thus be September 3, 1993. This amendment Under Executive Order 12866 (58 FR inconsistent with applicable law for added paragraph ORS 468.126(2)(e) 51735, October 4, 1993), this action is EPA, when it reviews a SIP submission, which provides that the five-day not a ‘‘significant regulatory action’’ and to use VCS in place of a SIP submission advance notice required by ORS therefore is not subject to review by the that otherwise satisfies the provisions of 468.126(1) does not apply if the notice Office of Management and Budget. For the Clean Air Act. Thus, the requirement will disqualify a state this reason, this action is also not requirements of section 12(d) of the program from Federal approval or subject to Executive Order 13211, National Technology Transfer and delegation. ODEQ responded to EPA’s ‘‘Actions Concerning Regulations That Advancement Act of 1995 (15 U.S.C. understanding of the application of ORS Significantly Affect Energy Supply, 272 note) do not apply. This rule does 468.126(2)(e) and agreed that, because Distribution, or Use’’ (66 FR 28355, May not impose an information collection Federal statutory requirements preclude 22, 2001). This action merely approves burden under the provisions of the the use of the five-day advance notice state law as meeting Federal Paperwork Reduction Act of 1995 (44 provision, no advance notice will be requirements and imposes no additional U.S.C. 3501 et seq.). required for violations of SIP requirements beyond those imposed by The Congressional Review Act, 5 requirements contained in permits. state law. Accordingly, the U.S.C. 801 et seq., as added by the Small

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Business Regulatory Enforcement EPA, dated November 5, 1999, DATES: Effective January 21, 2005, Fairness Act of 1996, generally provides November 27, 2000, January 10, 2003 except for §§ 22.972, 22.973, 90.674, that before a rule may take effect, the and April 19, 2004 which include 90.675, 90.676 and 90.677 which agency promulgating the rule must revisions to the inspection and contain information collection submit a rule report, which includes a maintenance program. requirements that have not been copy of the rule, to each House of the (i) Incorporation by reference. approved by the Office of Management Congress and to the Comptroller General (A) The following sections of the and Budget. The Commission will of the United States. EPA will submit a Oregon Administrative Rules 340: 256– publish a document in the Federal report containing this rule and other 0200, 256–0310, 256–0330, 256–0340, Register announcing the effective date required information to the U.S. Senate, 256–0350, 256–0370, 256–0380, 256– for these sections. the U.S. House of Representatives, and 0390, 256–0400, 256–0410, 256–0420, FOR FURTHER INFORMATION CONTACT: the Comptroller General of the United 256–0450, 256–0460, and 256–0470, as Technical information: Brian Marenco, States prior to publication of the rule in effective October 14, 1999; 256–0355, [email protected], Public Safety the Federal Register. A major rule 256–0440, and 256–0465, as effective and Critical Infrastructure Division, cannot take effect until 60 days after it October 25, 2000; 256–0356, as effective Wireless Telecommunications Bureau, is published in the Federal Register. October 4, 2001; and 256–0010, 256– (202) 418–0680, or TTY (202) 418–7233. This action is not a ‘‘major rule’’ as 0300, as effective October 24, 2003. Legal information: Roberto Mussenden, defined by 5 U.S.C. 804(2). (B) Remove the following old sections Esq. [email protected], Under section 307(b)(1) of the Clean of the Oregon Administrative Rules 340 Public Safety and Critical Infrastructure Air Act, petitions for judicial review of from the current incorporation by Division, Wireless Telecommunications this action must be filed in the United reference: 024–100, 024–300, 024–301, Bureau (202) 418–0680, or TTY (202) States Court of Appeals for the 024–305, 024–306, 024–307, 024–308, 418–7233. For additional information appropriate circuit by January 21, 2005. 024–309, 024–312, 024–314, 024–318, concerning the Paperwork Reduction Filing a petition for reconsideration by 024–320, 024–325, 024–330, 024–332, Act information collection requirements the Administrator of this final rule does 024–335, 024–337, 024–340, 024–355, contained in this document, contact not affect the finality of this rule for the 024–357, and 024–360. Judith B. Herman at (202) 418–0214, or purposes of judicial review nor does it (ii) Additional Material: via the Internet at Judith- (A) Oregon SIP Volume 2, Section 5.4, extend the time within which a petition [email protected]. for judicial review may be filed, and as effective October 24, 2003. SUPPLEMENTARY INFORMATION: This shall not postpone the effectiveness of [FR Doc. 04–25629 Filed 11–19–04; 8:45 am] document summarizes the Federal such rule or action. This action may not BILLING CODE 6560–50–U Communications Commission’s Report be challenged later in proceedings to and Order, Fifth R&O, Fourth MO&O, enforce its requirements. (See section and Order, FCC 04–168, adopted on July 307(b)(2).) FEDERAL COMMUNICATIONS 8, 2004, and released on August 6, 2004. List of Subjects in 40 CFR Part 52 COMMISSION The full text of this document is available for inspection and copying Environmental protection, Air 47 CFR Parts 2, 22, 24, 74, 78 and 90 pollution control, Carbon monoxide, during normal business hours in the Hydrocarbons, Incorporation by [WT Docket No. 02–55; ET Docket No. 00– FCC Reference Center, 445 12th Street, 258; ET Docket No. 95–18, RM–9498; RM– SW., Washington, DC 20554. The reference, Intergovernmental relations, 10024; FCC 04–168] Reporting and recordkeeping complete text may be purchased from the Commission’s copy contractor, Best requirements. Private Land Mobile Services; 800 MHz Copy and Printing Inc., 445 12th Street, Public Safety Interference Proceeding Dated: October 26, 2004. SW., Room CY–B402, Washington, DC Julie M. Hagensen, AGENCY: Federal Communications 20554. The full text may also be Acting Regional Administrator, Region 10. Commission. downloaded at http://www.fcc.gov/wtb. ■ Part 52, chapter I, title 40 of the Code ACTION: Final rule. Alternative formats are available to of Federal Regulations is amended as persons with disabilities by contacting follows: SUMMARY: In this document the Brian Millin at (202) 418–7426 or TTY Commission amends its rules to adopt (202) 418–7365 or at [email protected]. PART 52—[AMENDED] objective technical standards defining ‘‘unacceptable interference’’ to non- Summary of Report and Order ■ 1. The authority citation for part 52 cellular licensees operating in the 800 1. In the Report and Order, the continues to read as follows: MHz band and procedures detailing 800 Commission adopts changes to parts 2, Authority: 42 U.S.C. 7401 et seq. MHz licensees’ responsibilities and 22 and 90 of the Commission’s rules expectations regarding abatement of that were either proposed in or Subpart MM—Oregon such interference. The Commission also suggested in response to the Notice of ■ 2. Section 52.1970 is amended by adopts rules reconfiguring the 800 MHz Proposed Rule Making (NPRM) and adding paragraph (c) (142) to read as band and designating ten megahertz of subsequent Public Notices in this follows: spectrum in the 1.9 GHz band available proceeding. The NPRM, released on for the provision of commercial mobile March 15, 2002, 67 FR 16351–02 (April § 52.1970 Identification of plan. radio services (CMRS). The Commission 5, 2002), sought to explore all available * * * * * took these steps to solve the problem of options and alternatives for improving (c) * * * increasing interference to public safety the spectrum environment for public (142) The Environmental Protection communications in the 800 MHz band. safety operations in the 800 MHz Band Agency (EPA) approves various These rules are intended to abate this and to ensure that public safety agencies amendments to the Oregon State interference as well as making have access to adequate spectrum Implementation Plan which are additional spectrum available for the resources in the 800 MHz band to contained in four separate submittals to provision of new services. support their critical missions. On

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September 6, 2002, the Wireless system will be relocated from the Service (BAS) incumbents and Telecommunications Bureau (Bureau) Expansion Band unless a public safety reimburse UTAM Inc., (UTAM) for a released a public notice inviting licensee exercises its option to remain portion of the costs it has incurred in comment on a ‘‘Consensus Proposal’’ there. clearing the 1910–1920 MHz and the band plan submitted by seventeen • Relocate Nextel and other ESMR 1920–1930 MHz band segments, the parties (Consensus Parties) in a reply licensees to the 817–824 MHz/862–869 Commission will modify certain Nextel comment in the proceeding. On January MHz band. Nextel will vacate all licenses to provide Nextel with a 3, 2003, the Bureau sought comment on channels it now uses in the 806–817 nationwide authority to operate in ten the supplement, setting forth additional MHz/851–862 MHz band segment. megahertz of spectrum in the 1.9 GHz • information about the Consensus Public safety and later, CII licensees band; (viii) establish a mechanism by Proposal, as supplemented on December will have exclusive access to all which an independent Transition 24, 2002, by the Consensus Parties, 68 channels in the 809–809.75 MHz/854– Administrator oversees the completion FR 6687–01 (February 10, 2003). 854.75 MHz band segment as well as the of band reconfiguration and records 2. The following is a summary of our channels vacated by Nextel in the certain costs incurred by Nextel in major decisions. In the Report and interleaved portion of the band below connection therewith; (ix) consolidate Order, we: (i) Define ‘‘unacceptable 815 MHz/860 MHz for a limited period the B/ILT Pools in the 800 MHz and 900 interference’’ in the 800 MHz band as a of time. • MHz bands; (x) allow 900 MHz Private function of the threshold received Unless the subject of mutual Land Mobile Radio (PLMR) licensees to power levels of desired signals. agreement among affected, parties, other initiate CMRS operations on their Specifically, ‘‘unacceptable CMRS ESMR Operations in the 800 currently authorized spectrum or to interference’’ occurs when the signals MHz may stay where they are, subject assign their authorizations to others for from a cellular architecture station or to a stringent non-interference CMRS use. stations, cause the carrier-to-noise plus obligation, but will have the following 3. In the Fifth Report and Order (Fifth interference ratio of a radio meeting relocation options: (1) relocate to non- R&O), Fourth Memorandum Opinion TIA-equivalent Class A standards to cellular portion of the 800 MHz band at and Order (Fourth MO&O), and Order degrade below 20 dB in an area in Nextel’s expense, as close to ESMR band the Commission adopts changes to parts which the median measured received as possible in 814 MHz–816 MHz 15, 24, 74 and 78 of the Commission’s signal power of the desired signal is Expansion band; or (2) relocate at rules that were either proposed in or equal to or greater than ¥104 dBm for Nextel’s expense in ESMR spectrum mobile units or ¥101 dBm for portable which they would share with Nextel on suggested in response to the NPRM in units. In the case of data radios, a pro-rata basis. WT Docket 02–55 or proposed in or unacceptable interference occurs when • In some markets where both suggested in the Third Notice of the received signal power criteria, Southern LINC and Nextel offer ESMR Proposed Rule Making (Third NPRM) in above, are met and the bit error rate of service insufficient spectrum exists in ET Docket No. 00–258. The Third the radio exceeds the value specified by the 816–824 MHz/861–869 band NPRM, released on February 10, 2003, the radio’s manufacturer for reliable segment to accommodate both the 68 FR 12015–03 (March 13, 2003), operations; (ii) require Enhanced incumbent ESMR licensees already sought comments on the reallocation of Specialized Mobile Radio (ESMR) and operating there and new ESMR entrants spectrum in the 1910–1920 MHz band cellular telephone licensees, on request, migrating from the lower channels. In that can be paired with spectrum in the to notify public safety and CII licensees order not to unduly restrict the 1990–2000 MHz band to support fixed prior to activating new or modified operations of incumbent ESMR and mobile services, including cells; (iii) define relative responsibilities licensees we define the ESMR band in Advanced Wireless Services. In the of ESMR and cellular telephone those markets as the band segment Fifth R&O, the Fourth MO&O, and Order licensees for abatement of unacceptable 813.5–824 MHz/858.5–869 MHz. The we: (i) Designate two paired five interference both pre- and post-band Expansion Band in this area shall megahertz blocks in the 1910–1915 MHz reconfiguration; (iv) reconfigure the 800 extend from 812.5–813.5 MHz/857.5– and 1990–1995 MHz bands for licensed MHz band by: 858.5 MHz. All licensees operating in Fixed and Mobile services; (ii) make the • Moving the public safety NPSPAC the band segment 806–813.5 MHz/851– five megahertz block at 1910–1915 MHz channels from 821–824 MHz/866–869 858.5 MHz shall be afforded the same available by re-designating the band MHz to 806–809 MHz/851–854 MHz. protection against unacceptable from Unlicensed Personal • Relocate all systems now operating interference as specified in the Report Communications Services (UPCS) use to in the current General Category band and Order; licensed Fixed and Mobile services; segment at 806–809.75 MHz/851–854.75 (v) Adopt financial and licensing adopting a reimbursement plan to MHz elsewhere in the band. safeguards directed to ensure compensate UTAM, Inc., for relocation • Certain existing non-cellular B/ILT completion of band reconfiguration expenses it has incurred in relocating systems and non-cellular SMR systems regardless of Nextel’s financial incumbents from the band; and will continue to operate on interleaved condition and that Nextel does not reap addressing several pending petitions for channels between 809.75–816 MHz/ a financial windfall from our actions; rulemakings and petitions for waivers 854.75–861 MHz. (vi) accept Nextel’s relinquishment of its relating to new use of the 1910–1915 • Public safety systems will continue current spectrum rights in the 700 MHz MHz band; (iii) address how Nextel will to operate on interleaved channels Guard Band in forty markets and participate in the existing relocation and between 809–815 MHz/854–860 MHz. contemplate a Further Notice of reimbursement plan for incumbent BAS No public safety licensee will be Proposed Rulemaking to determine licensees in the 1990–2025 MHz band— required to operate in the 815–816 future use of this spectrum; (vii) in which has already been reallocated for MHz/860–861 MHz segment that we exchange for the spectrum Nextel is Fixed and Mobile services—given our have designated the ‘‘Expansion Band’’ surrendering coupled with the uncertain decision to provide Nextel access to the or in the 816–817 MHz/861–862 MHz costs it must incur to accomplish 800 1990–1995 MHz band; (iv) address segment that we have designated the MHz band reconfiguration, clear the 1.9 Nextel’s obligations to relocate ‘‘Guard Band.’’ Every public safety GHz band of Broadcast Auxiliary incumbent BAS licensees in the 1990–

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2025 MHz band, as well as address communications may be accommodated assign their authorizations to others for several petitions for reconsideration and without unacceptable interference, as CMRS use. clarification regarding the existing BAS that term is defined in the Report and 7. The Commission has taken these relocation plan, given our decision to Order. Because increasing instances of actions to immediately stem increasing provide Nextel access to the 1990–1995 interference to 800 MHz public safety instances of interference to 800 MHz MHz band (which has already been communications systems made it public safety communications systems. reallocated for Fixed and Mobile imperative that we act to stem such The Commission has long recognized Services). interference without delay, we adopted that the nation’s public safety community requires effective radio I. Procedural Matters rules that hold the involved ESMR and cellular telephone licensees strictly communications systems free of A. Paperwork Reduction Act responsible for abating interference by unacceptable interference if public 4. This Report and Order contains application of a variety of technical safety agencies are to adequately protect new information collection remedies which have been subsumed in the safety of lives and property. The requirements. The Commission, as part this proceeding under the rubric of actions taken by the Commission in the of its continuing effort to reduce Enhanced Best Practices. Specifically, Report and Order create a suitable paperwork burdens, invites the general the Commission took the following spectrum environment for public safety public to comment on the information actions: (i) Adopted a new 800 MHz and Critical Infrastructure Industries collection requirements contained in band plan that, after a transition period, communications systems operating in this R&O as required by the Paperwork will separate high-density ESMR the 800 MHz band. 8. In the Fourth Memorandum Reduction Act of 1995, Public Law 104– systems in the band, principally those Opinion and Order, we both grant and 13. Public and agency comments are operated by Nextel, from public safety deny petitions for reconsideration and due January 21, 2005. In addition, the and other non-cellular 800 MHz clarification of the Third Report and Commission notes that pursuant to the operations; (ii) require Nextel to Order and Third Memorandum Opinion Small Business Paperwork Relief Act of relinquish all of its 800 MHz spectrum and Order. We grant petitions to the 2002, Public Law 107–198, see 44 U.S.C. holdings below 817 MHz/862 MHz extent described herein and clarify 3506(c)(4), we previously sought resulting in an additional average of 4.5 several points relating to BAS specific comment on how the megahertz of 800 MHz band spectrum operations by licensees operating on Commission might ‘‘further reduce the becoming available to the public safety different channel plans during the information collection burden for small and critical infrastructure community; transition to the new BAS channel plan business concerns with fewer than 25 (iii) established a transition mechanism at 2025–2110 MHz. We otherwise deny employees.’’ for band reconfiguration with minimal the petitions relating to BAS relocation B. Final Regulatory Flexibility disruption to the operations of all issues in the 1990–2025 MHz band. We Certification affected 800 MHz incumbents during also no longer require BAS licensees in the transition period; (iv) required TV markets 31–210 to cease operation 5. As required by the Regulatory Nextel to pay all band reconfiguration Flexibility Act of 1980, as amended on channels 1 and 2 (1990–2008 MHz 1 costs of public safety and other 800 and 2008–2025 MHz, respectively) until (RFA), an Initial Regulatory Flexibility MHz incumbents that result from Analysis (IRFA) was incorporated in the they have been relocated to their final 2 transition to the new band plan; (v) channel plan in the 2025–2110 MHz NPRM. The Commission sought defined unacceptable interference as a written public comment on the band, but otherwise retain our function of threshold received power previously adopted relocation rules for proposals in the NPRM, including levels of desired signals; (vi) placed comment on the IRFA.3 Three MSS licensees. The changes we adopt strict responsibility for abatement of commenting parties specifically are necessary to allow Nextel, as a new unacceptable interference on the addressed the IRFA.4 We discuss those entrant in the 1990–2025 MHz band, to licensees whose systems are the source comments below. This present Final participate in the relocation process we of such interference; (vii) required prior Regulatory Flexibility Analysis (FRFA) had previously established for BAS notification, upon request, of the conforms to the RFA.5 incumbents. activation or modification of ESMR and Need for, and Objectives of the Order cellular telephone cells; (viii) Summary of Significant Issues Raised by established firm rules—including Public Comments in Response to the 6. In the Report and Order, we have IRFA concluded that reconfiguration of the response times of twenty-four hours and 800 MHz band is essential, over the long abatement initiation time of forty- 9. Three parties submitted comments term, to assure that critical public safety eight—for procedures to be used to specifically in response to the IRFA: identify, report and remedy instances of Business Autophones, Inc. (Business 1 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601– unacceptable interference; (ix) modified Autophones), Small Business in 612, has been amended by the Small Business certain Nextel licenses to accommodate Telecommunications (SBT), and Regulatory Enforcement Fairness Act of 1996 a nationwide allocation in the 1910– Skitronics, LLC (Skitronics).6 Business (SBREFA), Public Law 104–121, Title II, 110 Stat. 857 (1996). 1915 MHz/1990–1995 MHz paired Autophones opines that the Nextel Plan, 2 See Improving Public Safety Commission in the spectrum block, in exchange for Nextel’s which contemplated relocating B/ILT 800 MHz Band; Consolidating the 900 MHz surrendering spectrum, and bearing the licensees from the 800 MHz band to the Industrial/Land Transportation and Business Pool financial burden and risk of 700 MHz and 900 MHz at their own Channels, WT Docket No. 02–55, Notice of expense, would be financially Proposed Rulemaking, 17 FCC Rcd 4873, 4927 reconfiguring the 800 MHz band; (x) (2002) (NPRM). consolidated the Business and devastating to small business B/ILT 3 See id. at 4920 ¶93. Industrial/Land Transportation Pools in licensees and urges the Commission to 4 Business Autophones, Inc., Comments on IRFA the 800 MHz and 900 MHz bands, and; (May 6, 2002) Skitronics, LLC, Comments on IRFA (xi) allowed 900 MHz Private Land 6 Business Autophones, Inc., Comments on IRFA (May 6, 2002); Small Business in (May 6, 2002) Skitronics, LLC, Comments on IRFA Telecommunications, Comments on IRFA (May 6, Mobile Radio (PLMR) licensees to (May 6, 2002); Small Business in 2002). initiate CMRS operations on their Telecommunications, Comments on IRFA (May 6, 5 See 5 U.S.C. 04. currently authorized spectrum or to 2002).

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either abate interference on a case-by- discussed at ¶ 32 infra, we declined to rectified in this proceeding.18 Moreover, case basis or adopt the plan proposed by adopt this alternative. we believe our description of the two NAM/MRFAC which reconfigured the 11. Unlike the two other comments plans under consideration in the NPRM band but did not relocate B/ILT received in response to the IRFA, SBT adequately described the rules under licensees.7 For the reasons described focuses its comments on the adequacy consideration.19 We also note that the infra we have adopted a band plan that of the IRFA in terms of its compliance Consensus Parties filed a plan does not relocate B/ILT licensees to the with the RFA. Specifically, SBT makes superseding one of the plans discussed 700 MHz and 900 MHz band and the following arguments: (i) The IRFA in the NPRM on September 23, 2002 requires Nextel to finance any necessary does not describe the significant or and the major revision of that new plan relocation of B/ILT licensees. potential economic impact of the NPRM on December 24, 2002. Both of these plans, as well as the comments received 10. Skitronics posits on the impact of on small entities as required by the 12 in response to these plans, proposed four separate alternatives set forth in the RFA; (ii) the IRFA omits any substantive rules. Moreover, in the NPRM on small businesses: (i) description of the problem to be rectified by the regulation to be interest of ensuring a complete record, Skitronics echoes Business Autophones the Commission opened two additional concerns about the effect of the proposal promulgated or an objective for any proposed rule as required by the RFA; 13 notice and comment rounds to obtain to relocate B/ILT licensees from the 800 (iii) the Commission either relied on public comment on these two plans. MHz band to the 700 MHz and 900 MHz outdated statistical sources in Our position, therefore, is that the at their own expense.8 As we discuss at calculating the number of affected small Commission clearly stated its proposals ¶ 30 infra, we did not choose this licensees or failed to cite to the source(s) either in the NPRM and IRFA or fully alternative. (ii) Skitronics argues that entirely; 14 (iv) SBT agrees with the clarified them in the two subsequent Nextel’s alternative proposal, one that IRFA’s conclusion that the NPRM does notice and comment rounds that would allow incumbent 800 MHz not propose a rule that will entail permitted full comment on operators to remain in the band on a additional reporting, record-keeping, subsequently proposed plans. Indeed, secondary status, would deleteriously and other compliance requirements the Commission received the bulk of all affect small business SMR operators by because the NPRM does not, in fact, comments in this proceeding impacting these business’ growth propose any rules.15 However, in subsequent to the comment period prospects as well as their ability to Section D infra we add new reporting initiated in the NPRM. Finally, we note guarantee continuous service to their that in Section C, infra, we are using 9 and other requirements; (v) SBT urges customers. We note that although the Commission to amend the NPRM’s updated statistical sources to assess the Nextel offered this alternative in its IRFA in any subsequent IRFA or FRFA impact of the rules we adopt today on original White Paper proposal, Nextel if a substantive rule emerges from this small businesses. removed it as part of the plan it proceeding; 16 (vi) SBT contends that the Description and Estimate of the Number submitted as a member of the Consensus Commission should convert the NPRM Parties. Therefore, we ceased to of Small Entities to Which the Rules to a Notice of Inquiry (NOI) and issue Will Apply consider this alternative at that time and a second NPRM to propose specific 12. The RFA directs agencies to we have not chosen to enact that rules; 17 (vii) with regard to SBT’s provide a description of, and, where alternative as a rule. (iii) Skitronics comments, as an initial matter we feasible, an estimate of the number of argues that the Commission’s believe that we do not need to issue a small entities that may be affected by consideration of moving 800 MHz NOI in this proceeding because the the proposed rules, if adopted. The RFA incumbents to the 2.1 GHz imposes IRFA’s description of the problem of generally defines the term ‘‘small significant costs on small business SMR interference to public safety systems in entity’’ as having the same meaning as licensees since the propagation qualities the 800 MHz band is a sufficient the terms ‘‘small business,’’ ‘‘small of the 2.1 GHz spectrum make it description of the problem to be unsuitable for SMR use and there is a organization,’’ and ‘‘small governmental jurisdiction.’’ In addition, the term lack of available equipment suitable for 12 SBT Comments at 3–4 (citing 5 U.S.C. 603(a)). 10 ‘‘small business’’ has the same meaning SMR operations in this band. As in the 13 Id. at 4. According to SBT, the Commission’s case of the alternative of allowing SMR tentative conclusion that spectrum reallocation as the term ‘‘small business concern’’ licensees to remain in the 800 MHz serves the public interest because it would resolve under the Small Business Act. A ‘‘small band on a secondary basis, this harmful interference to 800 MHz public safety business concern’’ is one that is: (i) Is licensees ‘‘falls far short’’ of satisfying the independently owned and operated; (ii) alternative was superseded by the requirements of 5 U.S.C. 603(b)(1). See id. alternative set forth by the Consensus 14 Id. at 5–10. is not dominant in its field of operation; Parties in the Consensus Plan and we 15 Id. at 10–11. For the same reason, SBT concurs and (iii) satisfies any additional criteria have not chosen to move 800 MHz with the IRFA’s conclusion that the NPRM does not established by the Small Business incumbents to the 2.1 GHz band. (iv) propose any rule that duplicates, overlaps, or Administration (SBA). Below, we conflicts with other federal rules. See id. at 12. further describe and estimate the Skitronics contends that the alternative 16 Id. at 11, 12. In addition, SBT recommends that mentioned in the NPRM that has the the Commission amend the IRFA to comply with number of small entity licensees and least impact on small business is 5 U.S.C. 603(c)(3) by discussing alternatives to rules regulatees that may be affected by the enforcement of existing rules against proposed by the Commission. See id. at 11. Once rule changes adopted herein. those licensees responsible for causing again, SBT reiterates that the Commission has not 13. A ‘‘small organization’’ is proposed any rules and therefore could not have generally any not-for-profit enterprise interference to public safety on a case- discussed alternatives to such rules. Id. To the by-case basis.11 For the reasons extent that the IRFA discusses alternative proposals which is independently owned and for rule changes that were submitted to the operated and is not dominant in its Commission, SBT contends that such ‘‘alternatives’’ 20 7 See Business Autophones Comments on IRFA at field. Nationwide, there are do not qualify as alternatives proposed by the approximately 1.6 million small 2–3. Commission Id. 8 Skitronics Comments on IRFA at 6–10. 17 Id. at 12–13. SBT believes that the Commission 9 Id. at 10–11. should use a NOI ‘‘whenever it lacks information 18 See NPRM at 4927. 10 Id. at 11–13. about the industry to be regulated or the exact 19 Id. 11 Id. at 4, 16. nature of the problem to be addressed.’’ Id. at 13. 20 5 U.S.C. 601(4).

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organizations.21 We note that, according government, forestry conservation, bidding credits in auctions for to SBA data, there are approximately highway maintenance, and emergency Specialized Mobile Radio (SMR) 22.4 million small businesses medical services.28 The SBA rules geographic area licenses in the 800 MHz nationwide.22 We describe and estimate, contain a definition for cellular and and 900 MHz bands to firms that had below, the number of small other wireless telecommunications revenues of no more than $15 million in entities’applicants, licensees, and radio companies which encompasses business each of the three previous calendar equipment manufacturers’that may be entities engaged in radiotelephone years, or that had revenues of no more affected by this Report and Order. communications employing no more than $3 million in each of the previous 14. Governmental Entities. The term that 1,500 persons.29 There are a total of calendar years, respectively.32 In the ‘‘small governmental jurisdiction’’ is approximately 127,540 licensees within context of both the 800 MHz and 900 defined as ‘‘governments of cities, these services.30 With respect to local MHz service, the SBA has approved the towns, townships, villages, school governments, in particular, since many definitions of ‘‘small entity’’ and ‘‘very districts, or special districts, with a governmental entities as well as private small entity.’’ 33 These bidding credits population of less than fifty businesses comprise the licensees for apply to SMR providers in the 800 MHz thousand.’’ 23 As of 1997, there were these services, we include under public and 900 MHz bands that either hold approximately 87,453 governmental safety services the number of geographic area licenses or have jurisdictions in the United States.24 This government entities affected. obtained extended implementation number includes 39,044 county 17. Business, Industrial and Land authorizations. The Commission does governments, municipalities, and Transportation Licensees. At present, not know how many firms provide 800 townships, of which 37,546 there are 3239 Business and Industrial/ MHz or 900 MHz geographic area SMR (approximately 96.2%) have Land Transportation (I/LT) licensees service pursuant to extended populations of fewer than 50,000, and of that may be affected by this Report and implementation authorizations, nor how which 1,498 have populations of 50,000 Order.31 The Commission does not many of these providers have annual or more. Thus, we estimate the number require B/ILT licensees to disclose revenues of no more than $15 million. of small governmental jurisdictions information about number of One firm has over $15 million in overall to be 84,098 or fewer. employees, so the Commission does not revenues. The Commission assumes, for 15. Wireless Telecommunications. have information that could be used to purposes here, that all of the remaining The SBA has developed a small determine how many B/ILT licensees existing extended implementation business size standard for wireless firms constitute small entities under this authorizations are held by small within the broad economic census definition. Moreover, we note that B/ILT entities, as that term is defined by the category ‘‘Cellular and Other Wireless licensees generally are not in the SBA. The Commission has held Telecommunications.’’ 25 Under this business of providing cellular or other auctions for geographic area licenses in SBA category, a wireless business is wireless telecommunications services the 800 MHz SMR band. In the 800 MHz small if it has 1,500 or fewer employees. but instead use the licensed facilities in auction, 38 of the 524 licenses won were For the census category Cellular and support of other business activities. won by small and very small entities. Other Wireless Telecommunications 18. Specialized Mobile Radio 19. Wireless Communications firms, Census Bureau data for 1997 Licenses. The Commission awards Equipment Manufacturers. The SBA has show that there were 977 firms in this ‘‘small entity’’ and ‘‘very small entity’’ established a small business size category, total, that operated for the standard for radio and television 28 26 See subparts A and B of part 90 of the broadcasting and wireless entire year. Of this total, 965 firms had Commission’s Rules, 47 CFR 90.1–90.22. Police employment of 999 or fewer employees, licensees include 26,608 licensees that serve state, communications equipment and an additional 12 firms had county, and municipal enforcement through manufacturing. Under the standard, employment of 1,000 employees or telephony (voice), telegraphy (code), and teletype firms are considered small if they have and facsimile (printed material). Fire licensees 27 1000 or fewer employees.34 Census more. Thus, under this category and include 22,677 licensees comprised of private size standard, the majority of firms can volunteer or professional fire companies, as well as Bureau data for 1997 indicates that, for be considered small. units under governmental control. Public Safety that year, there were a total of 1,215 16. Public Safety Radio Licensees. As Radio Pool licensees also include 40,512 licensees establishments 35 in this category.36 Of that are state, county, or municipal entities that use a general matter, Public Safety Radio radio for official purposes. There are also 7,325 32 Pool licensees include police, fire, local forestry service licensees comprised of licensees 47 CFR 90.814(b)(1). from state departments of conservation and private 33 See Letter, dated Aug. 10, 1999, from A. Alvarez, Administrator, Small Business 21 forest organizations that set up communications Independent Sector, The New Nonprofit Administration to Tom Sugrue, Chief, Wireless Almanac & Desk Reference (2002). networks among fire lookout towers and ground crews. The 9,480 state and local governments are Telecommunications Bureau, Federal 22 See SBA, Programs and Services, SBA highway maintenance licensees that provide Communications Commission. Pamphlet No. CO–0028, at page 40 (July 2002). emergency and routine communications to aid 34 13 CFR 121.201, NAICS code 334220. 23 5 U.S.C. 601(5). other public safety services to keep main roads safe 35 The number of ‘‘establishments’’ is a less 24 U.S. Census Bureau, Statistical Abstract of the for vehicular traffic. Emergency medical licensees helpful indicator of small business prevalence in United States: 2000, Section 9, pages 299–300, (1,460) use these channels for emergency medical this context than would be the number of ‘‘firms’’ Tables 490 and 492. service communications related to the delivery of or ‘‘companies,’’ because the latter take into account 25 13 CFR 121.201, NAICS code 513322 (changed emergency medical treatment. Another 19,478 the concept of common ownership or control. Any to 517212 in October 2002). licensees include medical services, rescue single physical location for an entity is an 26 U.S. Census Bureau, 1997 Economic Census, organizations, veterinarians, persons with establishment, even though that location may be Subject Series: ‘‘Information,’’ Table 5, Employment disabilities, disaster relief organizations, school owned by a different establishment. Thus, the Size of Firms Subject to Federal Income Tax: 1997, buses, beach patrols, establishments in isolated number given may reflect inflated numbers of NAICS code 513322 (issued October 2000). areas, communications standby facilities, and businesses in this category, including the numbers 27 U.S. Census Bureau, 1997 Economic Census, emergency repair of public communications of small businesses. In this category, the Census Subject Series: ‘‘Information,’’ Table 5, Employment facilities. break-out data for firms or companies only gives the Size of Firms Subject to Federal Income Tax: 1997, 29 See 13 CFR 121.201 (NAICS Code 517212). total number of such entities for 1997, which was NAICS code 513322 (issued October 2000). The 30 There is no information currently available 1,089. census data do not provide a more precise estimate about the number within the 127,540 that have less 36 U.S. Census Bureau, 1997 Economic Census, of the number of firms that have employment of than 1500 employees. Industry Series: Manufacturing, ‘‘Industry Statistics 1,500 or fewer employees; the largest category 31 This number is based on the Commission’s by Employment Size,’’ Table 4, (issued August provided is ‘‘Firms with 1000 employees or more.’’ licensing database. Continued

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those, there were 1,150 that had (LPTV).42 Given the nature of this data for 1997, there were 324 firms that employment under 500, and an service, we will presume that all LPTV operated for the entire year.48 Of this additional 37 that had employment of licensees qualify as small entities under total, 273 firms had annual receipts 500 to 999. The Commission estimates the SBA size standard. According to under $10 million, and an additional that the majority of wireless Commission staff review of BIA twenty-four firms had annual receipts of communications equipment Publications, Inc., Master Access Radio $10 million to $24,999,990.49 Thus, manufacturers are small businesses.37 Analyzer Database, as of May 16, 2003, under this size standard, the majority of 20. Broadcast Auxiliary Service about 10,427 of the 10,945 commercial firms can be considered small. radio stations in the United States had (BAS). BAS involves a variety of 24. Fixed Microwave Services. revenue of $6 million or less. We note, transmitters, generally used to relay Microwave services include common however, that many radio stations are 50 51 broadcast programming to the public carrier, private-operational fixed, affiliated with much larger corporations 52 (through translator and booster stations) and broadcast auxiliary radio services. with much higher revenue, and, that in or within the program distribution chain At present, there are approximately assessing whether a business concern 36,708 common carrier fixed licensees (from a remote news gathering unit back qualifies as small under the above to the stations). The Commission has and 59,291 private operational-fixed definition, such business (control) licensees and broadcast auxiliary radio not developed a definition of small affiliations 43 are included.44 Our licensees in the microwave services. entities specific to broadcast auxiliary estimate, therefore, likely overstates the The Commission has not yet defined a licensees. The U.S. Small Business number of small businesses that might small business with respect to Administration (SBA) has developed be affected by our action. microwave services. For purposes of the small business size standards, as 22. Cable Antenna Relay Service FRFA, we will use the SBA’s definition follows: (1) For TV BAS, we will use the (CARS). CARS includes transmitters applicable to wireless and other size standard for Television generally used to relay cable telecommunications companies—i.e., an Broadcasting, which consists of all such programming within cable television entity with no more than 1,500 companies having annual receipts of no system distribution systems. The SBA persons.53 According to Census Bureau more than $12.0 million; 38 (2) for Aural has developed a small business size data for 1997, there were 977 firms in BAS, we will use the size standard for standard for Cable and other Program this category, total, that operated for the Radio Stations, which consists of all Distribution, which consists of all such entire year.54 Of this total, 965 firms had such companies having annual receipts companies having annual receipts of no employment of 999 or fewer employees, of no more than $6 million; 39 (3) for more than $12.5 million. According to and an additional 12 firms had Remote Pickup BAS we will use the Census Bureau data for 1997, there were employment of 1,000 employees or small business size standard for 1,311 firms within the industry category more.55 Thus, under this size standard, Television Broadcasting when used by a Cable and Other Program Distribution, majority of firms can be considered TV station and that for Radio Stations 45 total, that operated for the entire year. small. when used by such a station. Of this total, 1,180 firms had annual 25. We note that the number of firms 21. According to Commission staff receipts of under $10 million, and an does not necessarily track the number of review of BIA Publications, Inc. Master additional 52 firms had receipts of $10 46 Access Television Analyzer Database as million to $24,999,999.00. Thus, 48 U.S. Census Bureau, 1997 Economic Census, of May 16, 2003, about 814 of the 1,220 under this standard, the majority of Subject Series: Information, ‘‘Receipt Size of Firms commercial television stations in the firms can be considered small. Subject to Federal Income Tax: 1997,’’ Table 4, NAICS code 513340 (issued October 2000). United States had revenues of $12 23. Geostationary, Non-Geostationary Orbit, Fixed Satellite, or Mobile Satellite 49 Id. million or less. We note, however, that, 50 Service Operators (including 2 GHz MSS 47 CFR part 101 et seq. (formerly, part 21 of in assessing whether a business concern the Commission’s Rules). qualifies as small under the above systems). The Commission has not 51 Persons eligible under parts 80 and 90 of the definition, business (control) developed a definition of small entities Commission’s rules can use Private-Operational 40 41 applicable to geostationary or non- Fixed Microwave services. See 47 CFR parts 80 and affiliations must be included. Our 90. Stations in this service are called operational- estimate, therefore, likely overstates the geostationary orbit, fixed-satellite or mobile-satellite service operators. The fixed to distinguish them from common carrier and number of small entities that might be public fixed stations. Only the licensee may use the affected by our action, because the SBA has developed a small business operational-fixed station, and only for revenue figure on which it is based does size standard for Satellite communications related to the licensee’s Telecommunications Carriers, which commercial, industrial, or safety operations. not include or aggregate revenues from 52 consists of all such companies having Auxiliary Microwave Service is governed by affiliated companies. There are also part 74 of Title 47 of the Commission’s Rules. See $12.5 million or less in annual 47 CFR part 74 et seq. Available to licensees of 2,127 low power television stations 47 receipts. According to Census Bureau broadcast stations and to broadcast and cable network entities, broadcast auxiliary microwave 1999) NAICS code 334220. We note, however that 42 FCC News Release, ‘‘Broadcast Station Totals as stations are used for relaying broadcast television the predominant manufacturers of 800 MHz of September 30, 2002’’ (Nov. 6, 2002). signals from the studio to the transmitter, or equipment, Motorola and M/A COM Private Radio 43 ‘‘Concerns are affiliates of each other when one between two points such as a main studio and an Systems, Inc. are not considered small businesses. concern controls or has the power to control the auxiliary studio. The service also includes mobile 37 We note, however that the predominant other, or a third party or parties controls or has the TV pickups, which relay signals from a remote manufacturers of 800 MHz equipment, Motorola power to control both.’’ 13 CFR 121.103(a)(1). location back to the studio. and M/A COM Private Radio Systems, Inc. are not 44 ‘‘SBA counts the receipts or employees of the 53 13 CFR 121.201, NAICS code 517212 (formerly considered small businesses. concern whose size is at issue and those of all its 213322). 38 13 CFR 121.201, NAICS code 515120. domestic and foreign affiliates, regardless of 54 U.S. Census Bureau, 1997 Economic Census, 39 Id. NAICS code 515112. whether the affiliates are organized for profit, in Subject Series: Information, ‘‘Employment Size of 40 ‘‘Concerns are affiliates of each other when one determining the concern’s size.’’ 13 CFR Firms Subject to Federal Income Tax: 1997,’’ Table concern controls or has the power to control the 121.103(a)(4). 5, NAICS code 217212 (issues Oct. 2000). other or a third party or parties controls or has to 45 13 CFR 121.201, NAICS code 517510 (changed 55 Id. The census data do not provide a more power to control both.’’ 13 CFR 121.103(a)(1). from 513220 in October 2002). precise estimate of the number of firms that have 41 ‘‘SBA counts the receipts or employees of the 46 Id. employment of 1,500 or fewer employees; the concern whose size is at issue and those of all its 47 13 CFR 121.201, NAICS code 517410 (changed largest category provided is ‘‘Firms with 1,000 domestic concern’s size.’’ 13 CFR 121.103(a)(4). from 513340 in October 2002). employees or more.’’

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licensees. We estimate that all of the changes to the proposed technical spectrum, we afford small businesses an Fixed Microwave licensees (excluding parameters. The principal purpose of opportunity to comment on the future broadcast auxiliary licensees) would this rule is to facilitate a dialogue use of this spectrum. qualify as small entities under the SBA between Cellular Radiotelephone 31. We have considered the costs of definition. Of these licenses, licensees and public safety/CII licensees realignment and the limited resources of approximately 14 are issued for regarding potential interference, small entities, including public safety, frequencies in the Emerging Technology identification of interference, and in effectuating band realignment. We bands affected by this proceeding. This, voluntary corrective measures. believe that our decision will not have assuming that these entities also qualify a significant economic impact on small Steps Taken To Minimize Significant as small businesses, as many as 14 small entities in this regard because the cost Economic Impact on Small Entities, and business licensees could be affected by of 800 MHz realignment will be borne Significant Alternatives Considered the rules we adopt. We note that these by Nextel (i.e., Nextel will pay entities have been subject to relocation 28. The RFA requires an agency to relocation costs). We reject the by UTAM under rules originally describe any significant alternatives that alternative of deferring final action on adopted in the Commission’s Emerging it has considered in reaching its band reconfiguration, because deferral Technologies proceeding. UTAM is the proposed approach, which may include would increase the potential for Commission’s frequency coordinator for the following four alternatives (among increased interference to public safety UPCS devices in the 1910–1930 MHz others): (i) The establishment of systems because ESMR and Cellular band. The Fifth Report and Order differing compliance or reporting telephone licensees would remain in anticipates that these general relocation requirements or timetables that take into close proximity to such systems while rules will continue to apply to FS account the resources available to small expanding their operations. microwave licensees and does not entities; (ii) the clarification, 32. Although we have not codified the propose to modify the class of licensees consolidation, or simplification of Best Practices Guide, we endorse the that are subject to these relocation compliance or reporting requirements interference abatement strategies provisions. under the rule for small entities; (iii) the therein. However, when we considered use of performance, rather than design the sole use of Enhanced Best Practices Description of Projected Reporting, standards; and (iv) an exemption from as an alternative to reconfiguring the Recordkeeping, and Other Compliance coverage of the rule, or any part thereof, 800 MHz band in its entirety, we found Requirements for small entities.56 this alternative less effective and more 26. We expect that, at most, the rules 29. Our decision to reconfigure the costly over the long term than band adopted herein will result in nominal 800 MHz band is generally size-neutral, reconfiguration, and therefore more new reporting, recordkeeping, or other but some aspects are beneficial to small likely to be harmful to smaller entities. compliance requirements imposed on entities for the following reasons: (i) Our finding in that regard rests on the entities affected in this proceeding. The Although there are significant short- following facts: (i) Addressing rules we adopt herein require that any term costs associated with band interference on a case-by-case basis is Cellular Radiotelephone and/or ESMR reconfiguration, it is the solution most both labor-intensive and expensive, licensee that receives an interference likely to yield maximum interference which puts smaller entities at risk due complaint from a public safety/CII protection benefits for the least cost over to their more limited resources; (ii) the licensee shall promptly respond to such the long run. This cost savings are transactional cost of applying Enhanced complaint. Cellular Radiotelephone significant for small entities with Best Practices as an exclusive remedy licensees, in conjunction ESMR limited resources; (ii) once would increase as new public safety and licensees, shall establish an electronic implemented, a reconfigured band will other non-cellular systems came on line means of receiving the initial complaint reduce both the upfront amount of and ESMR and cellular telephone and shall respond on an ‘‘as soon as coordinated engineering work necessary licensees increased the capacity of their possible’’ basis and no later than 24 to prevent interference and the burden systems by adding more cells; (iii) the hours after receipt of initial notification. of troubleshooting interference increased cost and labor burden The purpose of this notification rule is incidents on a case-by-case basis. This disproportionately affects public safety to provide public safety/CII licensees a will allow small entities to utilize their agencies, many of which are small means to communicate to Cellular Radio scarce engineering resources more entities operating with very limited Telephone and/or ESMR licensees effectively. human, technical and financial instances of interference and for 30. We also considered proposals to resources. Cellular Radiotelephone and/or ESMR reallocate (1) Nextel’s 700 MHz Guard 33. We have determined not to require licensees to immediately initiate Band Block B spectrum, and the Upper public safety licensees to increase their corrective action. 700 MHz band to public safety use; and signal strength. Such a requirement 27. Additionally, the rules we adopt (2) provide private radio licensees 2:1 would impose a substantial burden on today provide that, upon request by a access to 900 MHz spectrum. Our public safety licensees, including small public safety/CII licensee, Cellular decision to decline to adopt these entities, which would often continue to Radiotelephone and/or ESMR licensees proposals was generally size-neutral but suffer from interference until the causes must provide to the public safety/CII has the following impact on small could be identified and until licensee the following information entities: (i) Since the Upper 700 MHz appropriate channels and sites for the before any new cell sites are constructed band is designated for auction, our construction of new base station or any existing cells are modified: (i) decision not to utilize this band will facilities could be obtained. Location; (ii) effective radiated power; allow small entities to bid on it in the 34. Regarding our decision to permit (iii) antenna height; and (iv) channels in future. (ii) Because we contemplate a negotiated agreements to swap or use. The purpose of this rule is for future rulemaking proceeding to exchange channels as a means to resolve informational purposes only and does determine the ultimate disposition of interference to public safety systems, we not entitle the public safety/CII licensee Nextel’s 700 MHz Guard Band do not foresee any adverse impact on to approve or disapprove the activation small entities. The channel swapping of a proposed cell site or to demand 56 See 5 U.S.C. 603(c)(1) through (c)(4). proposals to date have specified that

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Nextel will bear the costs thereof. To the To the extent that they can demonstrate contiguous spectrum, and reduce extent that small entities bear channel that they are not contributing to the regulatory burdens on all licensees, swap expenses not assumed by Nextel, interference to the public safety including small entities. The alternative we believe, for the reasons discussed at systems, they will not be responsible for of retaining separate pools for each ¶ 32 supra, the financial burden of these abating the interference. Therefore, the service would subject licensees to the small-scale band reconfigurations burden should be minimal for those unnecessary burden of seeking waivers should be less than the cost of reliance small entities not contributing to the to permit intercategory sharing, which on Enhanced Best Practices for the long public safety interference problem in may have been comparatively more term abatement of unacceptable the 800 MHz band. The minimal burden onerous for smaller entities to prepare interference. imposed by these rules is necessary to and file. 35. Regarding our decision to hold ensure that critical public safety 40. Regarding our decision to allow Cellular Radio Telephone and ESMR communications may be accommodated 900 MHz PLMR licensees to initiate licensees strictly responsible for without unacceptable interference. CMRS operations on their currently effectively abating actual or potential 37. In this respect, we are mindful authorized spectrum or to assign their unacceptable interference to 800 MHz that a number of the public safety authorizations to others for CMRS use, public safety systems in the shortest systems that are experiencing we perceive no adverse impact on small practicable time, we do not anticipate a interference are small entities. We entities. This decision will improve significant burden on small entities. We believe that the rules will impose a spectrum efficiency, promote the use of recognize that our rule does not exempt minimal burden on small public safety advanced technologies by affording small entities from its ambit. However, entities. First, because we will only licensees access to addition spectrum. in eliminating the interference we afford require them to furnish certain 41. Regarding our decision to allocate licensees the flexibility to determine necessary information to all licensees the 1910–1915 MHz/1990–1995 MHz which system—ESMR, Cellular that may be responsible for causing the paired spectrum blocks to Nextel, we Telephone or CII/public safety—to interference. Second, because this perceive no adverse impact on small modify and what particular technical provision will assure them of timely entities. Redesignating this spectrum for parameters to change on these systems; responses to and analyses of their Nextel’s use, for example, will facilitate and impose on the interfering interference complaints. Ultimately, the 800 MHz realignment, by, among other licensee(s), the obligation to promptly burden of supplying this information things, introducing an additional entity implement such changes. Moreover, we will be significantly less than that that can participate in funding the note that small entities were generally associated with identifying each source relocation costs of public safety, critical not among the interfering parties in of unacceptable interference and infrastructure, and private wireless those instances of interference that were contacting such sources individually. entities, including small entities. brought to our attention by parties in 38. Regarding our decision to require Alternatively, maintaining this this proceeding. We considered the notification of the activation of new or spectrum without applying our alternative of imposing system-wide, modified ESMR or cellular relocation principles will expose such stringent technical limitations on ESMR radiotelephone cells, we do not perceive entities to continued interference and Cellular Telephone licensees; any adverse impact on small entities. without sufficient spectrum and funding however, we found selection of that Indeed, the prior notification to achieve realignment. Further, we are alternative unwarranted at this time. requirement will enable small entities, satisfied that our decision will not Such rules would have imposed a such as public safety/CII licensees, to adversely impact BAS, UPCS, MSS, and burden on all licensees, including small take proactive, anticipatory steps to microwave interests on account of entities, which were not among those address potential interference. Without expenditures in this spectrum. As noted causing interference to 800 MHz public this requirement, public safety/CII in the Report and Order, Nextel has safety systems. In particular, we have licensees would first have to experience agreed to reimburse these interests or heeded the filings of rural cellular interference before taking recourse. pay the upfront costs to relocate telephone carriers who opposed Similarly, the requirement that Cellular incumbents in the manner provided by imposition of out-of-band emission Radiotelephone and/or ESMR licensees our Rules, and we will hold Nextel to standards that would require them to promptly initiate corrective actions after that agreement. add expensive equipment to their cell having been notified of interference by sites. public safety/CII licensees minimizes Report to Congress 36. Regarding our adoption of rules the burden on small entities of having 42. The Commission will send a copy establishing general standards and to endure prolonged periods of of this Report and Order, Fifth R&O, procedures to govern the abatement of interference. Moreover, as noted above, Fourth MO&O, and Order in a report to interference to public safety systems, we small entities were generally not among be sent to Congress and the General recognize that they will apply equally to the interfering parties in those instances Accounting Office pursuant to the all licensees, including small entities, of interference that were brought to our Congressional Review Act, see 5 U.S.C. which cause interference to 800 MHz attention by parties in this proceeding. 801(a)(1)(A). In addition, the Report and public safety systems. However, we do 39. Regarding our decision to Order, Fifth R&O, Fourth MO&O, and not anticipate any significant adverse consolidate the 800 MHz and 900 MHz Order and this final certification will be impact on small entities. We adopted Business and Industrial/Land sent to the Chief Counsel for Advocacy rules that were intentionally general in Transportation Pools, we perceive no of the Small Business Administration. nature to confer considerable discretion adverse impact on small entities. This on the parties involved in abating decision will allow any eligible Report to Small Business instances of interference to public safety Business or Industrial/Land Administration systems. Moreover, as noted above, Transportation entity to be licensed on 43. The Commission’s Consumer small entities were generally not among the consolidated channels. This Information Bureau, Reference the interfering parties in those instances consolidation will improve spectrum Information Center, shall send a copy of of interference that were brought to our efficiency, promote the use of advanced this Report and Order, Fifth R&O, attention by parties in this proceeding. technologies by affording licensees more Fourth MO&O, and Order including the

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Regulatory Flexibility Certification and List of Subjects Federal Communications Commission. to the Chief Counsel for Advocacy of the Marlene H. Dortch, 47 CFR Part 2 Small Business Administration. Secretary. 44. Pursuant to the authority of Frequency Allocations, General Rules Rule Changes Sections 1, 4(i), 303(f) and (r), 309, 316, and Regulations, Radio. ■ For the reasons discussed in the and 332 of the Communications Act of 47 CFR Parts 22 and 90 1934, as amended, 47 U.S.C. 151, 154(i), preamble 47 CFR parts 2, 22, 24, 74, 78, 303(f) and (r), 309, 316, and 332, parts Communications common carriers, and 90 are amended as follows: 2, 15, 22, 24, 74, 78, and 90 of the Communications equipment, Reporting PART 2—FREQUENCY ALLOCATIONS Commission’s rules, 47 CFR parts 2, 22, and recordkeeping requirements. AND RADIO TREATY MATTERS; 24, 74, 78, and 90, is amended as set GENERAL RULES AND REGULATIONS forth in Rule Changes, January 21, 2005 47 CFR Part 24 ■ except for §§ 22.972, 22.973, 90.674, Communications common carriers. 1. The authority citation for part 2 90.675, 90.676, and 90.677 which continues to read as follows: contain information collection 47 CFR Part 74 Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted. requirements that have not been Radio. approved by the Office of Management ■ 2. Section 2.106, the Table of and Budget. The Commission will 47 CFR Part 78 Frequency Allocations, is amended by publish a document in the Federal revising pages 38 and 39. Register announcing the effective date Cable television, Radio. for these sections. § 2.106 Table of Frequency Allocations. BILLING CODE 6712–01–P

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BILLING CODE 6712–01–C

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PART 22—PUBLIC MOBILE SERVICES ratio of paragraph (a)(1)(ii)(B) of this of interference, including out-of-band section. The adjusted threshold levels emissions and intermodulation. ■ 3. The authority citation for part 22 shall then define the minimum (2) Any licensee that can show that its continues to read as follows: measured signal power(s) in lieu of signal does not directly or indirectly, Authority: 47 U.S.C. 154, 222, 303, 309 and paragraphs (a)(1)(i) of this section at cause or contribute to causing 332. which the licensee using such non- unacceptable interference to a non- ■ 4. Add §§ 22.970 through 22.973 to compliant transceiver is entitled to cellular part 90 of this chapter licensee subpart H to read as follows: interference protection. in the 800 MHz band, as defined in this (b) Minimum receiver requirements. chapter, shall not be held responsible § 22.970 Unacceptable interference to Part Voice transceivers capable of operating for resolving unacceptable interference. 90 non-cellular 800 MHz licensees from in the 806–824 MHz portion of the 800 Notwithstanding, any licensee that cellular radiotelephone or Part 90 ESMR MHz band shall have the following receives an interference complaint from systems. minimum performance specifications in a public safety/CII licensee shall (a) Definition. Except as provided in order for the system in which such respond to such complaint consistent 47 CFR 90.617(k), unacceptable transceivers are used to claim with the interference resolution interference to non-cellular part 90 of entitlement to full protection against procedures set forth in this chapter. this chapter licensees in the 800 MHz unacceptable interference (See band will be deemed to occur when the § 22.972 Interference resolution paragraph (a) (2) of this section). procedures. below conditions are met: (1) Voice units intended for mobile (1) A transceiver at a site at which use: 75 dB intermodulation rejection (a) Initial notification. (1) Cellular interference is encountered: ratio; 75 dB adjacent channel rejection Radiotelephone licensees may receive (i) Is in good repair and operating ratio; ¥116 dBm reference sensitivity. initial notification of interference from condition, and is receiving: (2) Voice units intended for portable non-cellular part 90 of this chapter ¥ (A) A median desired signal of 104 use: 70 dB intermodulation rejection licensees in the 800 MHz band pursuant dBm or higher, as measured at the R.F. ratio; 70 dB adjacent channel rejection to § 90.674(a) of this chapter. input of the receiver of a mobile unit; ratio; ¥116 dBm reference sensitivity. (2) Cellular Radiotelephone licensees, or in conjunction with part 90 ESMR (B) A median desired signal of ¥101 § 22.971 Obligation to abate unacceptable licensees, shall establish an electronic dBm or higher, as measured at the R.F. interference. means of receiving the initial input of the receiver of a portable i.e. (a) Strict responsibility. Any licensee notification described in § 90.674(a) of hand-held unit; and, either who, knowingly or unknowingly, this chapter. The electronic system must (ii) Is a voice transceiver: directly or indirectly, causes or be designed so that all appropriate (A) With manufacturer published contributes to causing unacceptable Cellular Radiotelephone licensees and performance specifications for the interference to a non-cellular Part 90 part 90 ESMR licensees can be receiver section of the transceiver equal licensee in the 800 MHz band, as contacted about the interference to, or exceeding, the minimum defined in § 22.970 shall be strictly incident with a single notification. The standards set out in paragraph (b) of this accountable to abate the interference, electronic system for receipt of initial section, below; and; with full cooperation and utmost notification of interference complaints (B) Receiving an undesired signal or diligence, in the shortest time must be operating no later than signals which cause the measured practicable. Interfering licensees shall February 22, 2005. Carrier to Noise plus interference (C/ consider all feasible interference (3) Cellular Radiotelephone licensees (I+N)) ratio of the receiver section of abatement measures, including, but not must respond to the initial notification said transceiver to be less than 20 dB, limited to, the remedies specified in the described in § 90.674(a) of this chapter, or, interference resolution procedures set as soon as possible and no later than 24 (iii) Is a non-voice transceiver forth in § 22.972. This strict hours after receipt of notification from receiving an undesired signal or signals responsibility obligation applies to all a part 90 public safety/CII licensee. This which cause the measured bit error rate forms of interference, including out-of- response time may be extended to 48 (BER) (or some comparable band emissions and intermodulation. hours after receipt from other part 90 specification) of the receiver section of (b) Joint and several responsibility. If non-cellular licensees provided affected said transceiver to be more than the two or more licensees knowingly or communications on these systems are value reasonably designated by the unknowingly, directly or indirectly, not safety related. manufacturer. cause or contribute to causing (b) Interference analysis. Cellular (2) Provided, however, that if the unacceptable interference to a non- Radiotelephone licensees—who receive receiver section of the mobile or cellular part 90 of this chapter licensee an initial notification described in portable voice transceiver does not in the 800 MHz band, as defined in § 90.674(a) of this chapter—shall conform to the standards set out in § 22.970, such licensees shall be jointly perform a timely analysis of the paragraph (b) of this section, then that and severally responsible for abating interference to identify the possible transceiver shall be deemed subject to interference, with full cooperation and source. Immediate on-site visits may be unacceptable interference only at sites utmost diligence, in the shortest conducted when necessary to complete where the median desired signal practicable time. timely analysis. Interference analysis satisfies the applicable threshold (1) This joint and several must be completed and corrective action measured signal power in paragraph responsibility rule requires interfering initiated within 48 hours of the initial (a)(1)(i) of this section after an upward licensees to consider all feasible complaint from a part 90 of this chapter adjustment to account for the difference interference abatement measures, public safety/CII licensee. This response in receiver section performance. The including, but not limited to, the time may be extended to 96 hours after upward adjustment shall be equal to the remedies specified in the interference the initial complaint from other part 90 increase in the desired signal required resolution procedures set forth in of this chapter non-cellular licensees to restore the receiver section of the § 22.972(c). This joint and several provided affected communications on subject transceiver to the 20 dB C/(I+N) responsibility rule applies to all forms these systems are not safety related.

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Corrective action may be delayed if the clear and imminent danger to life or parameters when a public safety affected licensee agrees in writing property, the licensee causing the licensee alerts them to possible (which may be, but is not required to be, interference must discontinue the interference; and recorded via e-mail or other electronic associated operation immediately, until (3) Rapidly identify the source if means) to a longer period. a remedy can be identified and applied. interference is encountered when the (c) Mitigation steps. (1) All Cellular The determination that a continuing cell is activated. Radiotelephone and part 90 of this presence exists that constitutes a clear chapter ESMR licensees who are and imminent danger to life or property, PART 24—PERSONAL responsible for causing unacceptable must be made by written statement that: COMMUNICATIONS SERVICES interference shall take all affirmative (i) Is in the form of a declaration, ■ measures to resolve such interference. notarized affidavit, or statement under 5. The authority citation for part 24 Cellular Radiotelephone licensees found penalty or perjury, from an officer or continues to read as follows: to contribute to unacceptable executive of the affected public safety Authority: Sections 47 U.S.C. 154, 301, interference, as defined in § 22.970, licensee; 302, 303, 309 and 332. shall resolve such interference in the (ii) Thoroughly describes the basis of ■ 6. Amend § 24.203 by revising shortest time practicable. Cellular the claim of clear and imminent danger; paragraph (b) and adding paragraph (d) Radiotelephone licensees and part 90 of (iii) Was formulated on the basis of to read as follows: this chapter ESMR licensees must either personal knowledge or belief after provide all necessary test apparatus and due diligence; § 24.203 Construction requirements. technical personnel skilled in the (iv) Is not proffered by a contractor or * * * * * operation of such equipment as may be other third party; and (b) Licensees of 10 MHz blocks except necessary to determine the most (v) Has been approved by the Chief of for the 1910–1915 MHz and 1990–1995 appropriate means of timely eliminating the Wireless Telecommunication MHz, including 10 MHz C block the interference. However, the means Bureau or other designated Commission licenses reconfigured pursuant to whereby interference is abated or the official. Prior to the authorized official Amendment of the Commission’s Rules cell parameters that may need to be making a determination that a clear and Regarding Installment Payment adjusted is left to the discretion of the imminent danger exists, the associated Financing for Personal Communications Cellular Radiotelephone and/or part 90 written statement must be served by Services (PCS) Licensees, WT Docket of this chapter ESMR licensees, whose hand-delivery or receipted fax on the No. 97–82, Sixth Report and Order, FCC affirmative measures may include, but applicable offending licensee, with a 00–313, and 15 MHz blocks resulting not be limited to, the following copy transmitted by the fastest available from the disaggregation option as techniques: means to the Washington, DC office of provided in the Commission’s Rules (i) Increasing the desired power of the the Commission’s Wireless Regarding Installment Payment public safety/CII signal; Telecommunications Bureau. Financing for Personal Communications (ii) Decreasing the power of the part § 22.973 Information exchange. Services (PCS) Licensees, Second Report 90 ESMR and/or Cellular and Order and Further Notice of (a) Prior notification. Public safety/CII Radiotelephone system signal; Proposed Rule Making, WT Docket 97– licensees may notify a part 90 ESMR or (iii) Modifying the part 90 ESMR and/ 82, 12 FCC Rcd 16436 (1997), as cellular radiotelephone licensee that or Cellular Radiotelephone system modified by Order on Reconsideration they wish to receive prior notification of antenna height; of the Second Report and Order, WT the activation or modification of part 90 (iv) Modifying the part 90 ESMR and/ Docket 97–82, 13 FCC Rcd 8345 (1998), ESMR or cellular radiotelephone cell or Cellular Radiotelephone system must serve with a signal level sufficient sites in their area. Thereafter, the part 90 antenna characteristics; to provide adequate service to at least (v) Incorporating filters into part 90 ESMR or cellular radiotelephone one-quarter of the population in their ESMR and/or Cellular Radiotelephone licensee must provide the following licensed area within five years of being transmission equipment; information to the public safety/CII licensed, or make a showing of (vi) Permanently changing part 90 licensee at least 10 business days before substantial service in their licensed area ESMR and/or Cellular Radiotelephone a new cell site is activated or an existing within five years of being licensed. frequencies; and cell site is modified: (vii) Supplying interference-resistant (1) Location; Population is defined as the 1990 receivers to the affected public safety/ (2) Effective radiated power; population census. Licensees may elect CII licensee(s). If this technique is used, (3) Antenna height; to use the 2000 population census to in all circumstances, Cellular (4) Channels available for use. determine the five-year construction Radiotelephone and/or part 90 of this (b) Purpose of prior notification. The requirement. Failure by any licensee to chapter ESMR licensees shall be prior coordination of cell sites is for meet these requirements will result in responsible for all costs thereof. informational purposes only. Public forfeiture of the license and the licensee (2) Whenever short-term interference safety/CII licensees are not afforded the will be ineligible to regain it. abatement measures prove inadequate, right to accept or reject the activation of * * * * * the affected part 90 of this chapter non- a proposed cell or to unilaterally require (d) Licensees in the paired 1910–1915 cellular licensee shall, consistent with changes in its operating parameters. The MHz and 1990–1995 MHz bands must but not compromising safety, make all principal purposes of notification are to: make a showing of ‘‘substantial service’’ necessary concessions to accepting (1) Allow a public safety licensee to in their license area within ten years of interference until a longer-term remedy advise the part 90 of this chapter ESMR the date of initial license issuance or can be implemented. or Cellular Radiotelephone licensee renewal. ‘‘Substantial service’’ is (3) Discontinuing operations when whether it believes a proposed cell will defined as service which is sound, clear imminent danger exists. When a generate unacceptable interference; favorable, and substantially above a part 90 of this chapter public safety (2) Permit Cellular Radiotelephone or level of mediocre service which just licensee determines that a continuing part 90 of this chapter ESMR licensees might minimally warrant renewal. presence of interference constitutes a to make voluntary changes in cell Failure by any licensee to meet this

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requirement will result in forfeiture of Service, and Local Television PART 78—CABLE TELEVISION RELAY the license and the licensee will be Transmission Service licensees will be SERVICE ineligible to regain it. required to use the Band A channel plan ■ 7. Amend § 24.229 by adding in paragraph (a)(3)(i) of this section after ■ 12. The authority citation for part 78 paragraph (c) to read as follows: completion of relocation by an Emerging continues to read as follows: Technologies licensee in accordance § 24.229 Frequencies. Authority: Sections 2, 3, 4, 301, 303, 307, with § 74.690 or § 78.40. Licensees 308, 309, 48 Stat., as amended, 1064, 1065, * * * * * declining relocation may continue to 1066, 1081, 1082, 1083, 1084, 1085; 47 U.S.C. (c) The paired frequency blocks 1910– use their existing channel plan but must 152, 153, 154, 301, 303, 307, 308, 309. 1915 MHz and 1990–1995 MHz are discontinue use of the 1990–2025 MHz available for assignment in the 175 band when they indicate to an Emerging ■ 13. Amend § 78.40 by revising Economic Areas defined in § 90.7 of this Technologies licensee, acting pursuant paragraphs (b), (c)(2), (c)(3), (e) and the chapter. The 1910–1915 MHz block to § 74.690 or § 78.40 of this chapter, introductory text of paragraph (f), and by shall be used for mobile/portable station that they decline to be relocated. removing and reserving paragraph (f)(1)(ii) to read as follows: transmissions while the 1990–1995 * * * * * MHz block shall be used for base station ■ 11. Amend § 74.690 by revising § 78.40 Transition of the 1990–2025 MHz transmissions. paragraphs (b), (c)(2), (c)(3), (d) and the band from the Cable Television Relay ■ 8. Amend § 24.247 by adding introductory text of paragraph (e), and to Service to emerging technologies. paragraph (c) to read as follows: remove and reserve section (e)(1)(ii) to (a) * * * § 24.247 Triggering a reimbursement read as follows: (b) Existing Licensees in the 1990– obligation. § 74.690 Transition of the 1990–2025 MHz 2025 MHz band allocated for licensed * * * * * band from the Broadcast Auxiliary Service emerging technology services will (c) Any new entrants granted licenses to emerging technologies. maintain primary status in the band for the 1910–1915 MHz band must (a) * * * until a New Entrant completes reimburse UTAM a pro rata share of its (b) An Existing Licensee in the 1990– relocation of the Existing Licensee’s total expenses incurred by UTAM as of 2025 MHz band allocated for licensed operations or the Existing Licensee the date that the new entrants gain emerging technology services will indicates to a New Entrant that it access to the band. The percent required maintain primary status in the band declines to be relocated. by new entrants to pay shall be until the Existing Licensee’s operations (c) * * * calculated based upon the amount of are relocated by a New Entrant, are (2) The New Entrant completes all spectrum granted to the new entrant as discontinued under the terms of activities necessary for implementing compared to the total amount of paragraph (a) of this section, or become the replacement facilities, including spectrum UTAM is responsible for secondary under the terms of paragraph engineering and cost analysis of the clearing of incumbents (20 megahertz), (e)(6) of this section or the Existing relocation procedure and, if radio and must be paid before a new entrant Licensee indicates to a New Entrant that facilities are used, identifying and begins operations in the band. For it declines to be relocated. obtaining, on the incumbents’ behalf, example, if a new entrant obtains a (c) * * * new microwave or Cable Television license for 5 megahertz of spectrum in (2) The New Entrant completes all Relay Service frequencies and frequency this band, it is required to reimburse activities necessary for implementing coordination. UTAM one-quarter of UTAM’s total the replacement facilities, including (3) The New Entrant builds the costs to date on a pro rata shared basis. engineering and cost analysis of the replacement system and tests it for New entrants will be responsible for the relocation procedure and, if radio comparability with the existing system. actual costs associated with future facilities are used, identifying and * * * * * relocation activities in their licensed obtaining, on the incumbents’ behalf, (e) If, within one year after the spectrum, but will be entitled to seek new microwave or Local Television relocation to new facilities the Existing reimbursement from UTAM for the Transmission Service frequencies and Licensee demonstrates that the new proportion of those band clearing costs frequency coordination. facilities are not comparable to the that benefit users of the 1915–1930 MHz (3) The New Entrant builds the former facilities, the New Entrant must band. replacement system and tests it for remedy the defect. comparability with the existing system. (f) Subject to the terms of this PART 74—EXPERIMENTAL RADIO, (d) The Existing Licensee is not paragraph (f), the relocation of Existing AUXILIARY, SPECIAL required to relocate until the alternative Licensees will be carried out by MSS BROADCASTING AND OTHER facilities are available to it for a licensees in the following manner: PROGRAM DISTRIBUTIONAL reasonable time to make adjustments, SERVICES determine comparability, and ensure a * * * * * seamless handoff. If, within one year ■ 9. The authority citation for part 74 PART 90—PRIVATE LAND MOBILE after the relocation to new facilities the RADIO SERVICES continues to read as follows: Existing Licensee demonstrates that the Authority: 47 U.S.C. 154, 303, 307, 336(f), new facilities are not comparable to the ■ 14. The authority citation for part 90 336(h) and 554. former facilities, the New Entrant must continues to read as follows: ■ 10. Amend § 74.602 by revising remedy the defects. (e) Subject to the terms of this Authority: Sections 4(i), 11, 303(g), 303(r), paragraph (a)(3)(iii) to read as follows: paragraph (e), the relocation of Existing and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, § 74.602 Frequency assignment. Licensees will be carried out by MSS 303(g), 303(r), 332(c)(7). (a) * * * licensees in the following manner: (3) * * * (1) * * * ■ 15. Amend § 90.7 by adding the (iii) Broadcast Auxiliary Service, (ii) [Reserved] following definitions in alphabetical Cable Television Remote Pickup * * * * * order to read as follows:

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§ 90.7 Definitions. internal radio services are used to the 851–854 MHz bands at locations Cellular System (800 MHz). In the protect safety of life, health, or property; farther then 110 km (68.4 miles) from 806–817 MHz/851–862 MHz band, a and are not made commercially the U.S./Mexico border and 140 km (87 cellular system is defined as a high- available to the public. miles) from the U.S./Canadian border density system which: * * * * * (‘‘border regions’’). In the border (1) Has more than five overlapping Enhanced Specialized Mobile Radio regions, the principal spectrum for the interactive sites featuring hand-off System (ESMR). A specialized mobile National Plan may be different. The capability; and radio (SMR) system operating in the 800 National plan establishes planning (2) Any one of such sites has an MHz band which employs an 800 MHz regions covering all parts of the United antenna height of less than 30.4 meters cellular system as defined in this States, Puerto Rico, and the U.S. Virgin (100 feet) above ground level with an section. Islands. No assignments will be made in antenna height above average terrain * * * * * the spectrum designated for the (HAAT) of less than 152.4 meters (500 ■ 16. Section 90.16 is revised to read as National Plan until a regional plan for feet) and twenty or more paired follows: the area has been accepted by the Commission. frequencies. § 90.16 Public Safety National Plan. ■ * * * * * The Commission has established a 17. Amend § 90.20(c)(3) by removing Critical Infrastructure Industry (CII). National Plan which specifies special frequency bands ‘‘806 to 824’’ and ‘‘851 Private internal radio services operated policies and procedures governing the to 859’’ and by adding in its place ‘‘806 by State, local governments and non- Public Safety Pool (formally Public to 821’’ and ‘‘851 to 862’’ and by revising government entities, including utilities, Safety Radio Services and the Special paragraph (d)(69) to read as follows: railroads, metropolitan transit systems, Emergency Radio Service). The National § 90.20 Public Safety Pool. pipelines, private ambulances, Plan is contained in the Report and * * * * * volunteer fire departments, and not-for- Order in General Docket No. 87–112. profit organizations that offer emergency The principal spectrum resource for the (c) * * * road services, provided these private National Plan is the 806–809 MHz and (3) * * *

PUBLIC SAFETY POOL FREQUENCY TABLE

Frequency or band Class of station(s) Limitations Coordinator

******* 806 to 817 ...... do ...... 69 851 to 862 ...... Base or mobile ...... 69

*******

(d) * * * ■ 18. Amend § 90.35(b)(3) by removing § 90.35 Industrial/Business Pool. (69) Subpart S of this part contains frequency bands ‘‘806 to 821’’ and ‘‘851 * * * * * rules for assignment of frequencies in to 869’’ and by adding in its place ‘‘809 (b) * * * the 806–817 MHz and 851–862 MHz to 824’’ and ‘‘854 to 869’’ and by revising bands. paragraph (c)(71) to read as follows: (3) * * * * * * * *

INDUSTRIAL/BUSINESS POOL FREQUENCY TABLE

Frequency or band Class of station(s) Limitations Coordinator

******* 809 to 824 ...... Mobile ...... 71 854 to 869 ...... Base or mobile ...... 71

*******

(c) * * * ■ 19. Amend § 90.209(b)(5) by removing § 90.209 Bandwidth limitations. (71) Subpart S of this part contains frequency bands ‘‘806–821/851–866’’ * * * * * rules for assignment of frequencies in and ‘‘821–824/866–869’’ and by adding (b) * * * the 809–824/854–869 and 896–901/935– in its place ‘‘806–809/851–854’’ and 940 MHz bands. ‘‘809–824/854–869’’ to read as follows: (5) * * * * * * * *

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STANDARD CHANNEL SPACING/BANDWIDTH

Authorized Frequency band (MHz) Channel spac- bandwidth ing (kHz) (kHz)

******* 806–809/851–854 ...... 12.5 20 809–824/854–869 ...... 25 20

*******

* * * * * 851–866’’ 3 and ‘‘821–824/866–869’’ and § 90.210 Emission masks. by adding in its place ‘‘806–809/851– ■ 20. In § 90.210, revise the table by * * * * * 854’’ and ‘‘809–824/854–869’’ 3 to read removing frequency bands ‘‘806–821/ as follows:

APPLICABLE EMISSION MASKS

Mask for Mask for equipment equipment Frequency band (MHz) with audio low without audio pass filter low pass filter

******* 806–809/851–854 ...... B H 809–824/854–869 3 ...... B G

*******

* * * * * ■ 21. Amend § 90.213(a) by removing its place ‘‘806–809’’, ‘‘809–824’’, ‘‘851– 3 ESMR systems shall comply with the frequency bands ‘‘806–821’’, ‘‘821–824’’, 854’’, ‘‘854–869’’ to read as follows: ‘‘851–866’’, ‘‘866–869’’ and by adding in emission mask provisions of § 90.691. § 90.213 Frequency stability. * * * * * (a) * * *

MINIMUM FREQUENCY STABILITY [Parts per million (ppm)]

Mobile stations Fixed and Frequency range (MHz) base sta- Over 2 2 watts or tions watts output less output power power

******* 806–809 ...... 14 1.0 1.5 1.5 809–824 ...... 14 1.5 2.5 2.5 851–854 ...... 1.0 1.5 1.5 854–869 ...... 1.5 2.5 2.5

*******

* * * * * EA-based SMR operations in the 806– partial assignments of an authorized ■ 22. Amend § 90.607 by revising 824 MHz/851–869 MHz band or 896– grant to an applicant proposing to create paragraph (e) to read as follows: 901 MHz/935–940 MHz band. a new system or to an existing licensee ■ 23. Amend § 90.609 by revising that has loaded its system to 70 mobiles § 90.607 Supplemental information to be paragraph (c) to read as follows: per channel and is expanding that furnished by applicants for facilities under system. An applicant authorized to this subpart. § 90.609 Special limitations on amendment expand an existing system or to create * * * * * of applications for assignment or transfer of a new system with frequencies from any (e) All applicants for frequencies authorizations for radio systems above 800 category obtained through partial MHz. governed by this subpart are subject to assignment will receive the assignor’s the frequency coordination * * * * * existing license expiration date and requirements of § 90.175(b) except (c) Licensees of constructed systems loading deadline for the frequencies that applicants requesting frequencies for in any category are permitted to make are assigned. A licensee that makes a

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partial assignment of a station’s TABLE OF 806–824/851–869 MHZ TABLE OF 806–824/851–869 MHZ frequencies will not be authorized to CHANNEL DESIGNATIONS—Continued CHANNEL DESIGNATIONS—Continued obtain additional frequencies for that station for a period of one year from the Channel No. Base frequency Channel No. Base frequency date of the partial assignment. (MHz) (MHz) * * * * * 39 ...... 5125 109 ...... 4250 ■ 24. Section 90.613 is revised to read as 40 ...... 5375 110 ...... 4375 follows: 41 ...... 5500 111 ...... 4500 42 ...... 5625 112 ...... 4625 § 90.613 Frequencies available. 43 ...... 5750 113 ...... 4750 The following table indicates the 44 ...... 5875 114 ...... 4875 channel designations of frequencies 45 ...... 6000 115 ...... 5125 available for assignment to eligible 46 ...... 6125 116 ...... 5375 applicants under this subpart. 47 ...... 6250 117 ...... 5500 Frequencies shall be assigned in pairs, 48 ...... 6375 118 ...... 5625 49 ...... 6500 119 ...... 5750 with mobile and control station 50 ...... 6625 120 ...... 5875 transmitting frequencies taken from the 51 ...... 6750 121 ...... 6000 806–824 MHz band with corresponding 52 ...... 6875 122 ...... 6125 base station frequencies being 45 MHz 53 ...... 7000 123 ...... 6250 higher and taken from the 851–869 MHz 54 ...... 7125 124 ...... 6375 band, or with mobile and control station 55 ...... 7250 125 ...... 6500 frequencies taken from the 896–901 56 ...... 7375 126 ...... 6625 MHz band with corresponding base 57 ...... 7500 127 ...... 6750 58 ...... 7625 128 ...... 6875 station frequencies being 39 MHz higher 59 ...... 7750 129 ...... 7000 and taken from the 935–940 MHz band. 60 ...... 7875 130 ...... 7125 Only the base station transmitting 61 ...... 8000 131 ...... 7250 frequency of each pair is listed in the 62 ...... 8125 132 ...... 7375 following tables. 63 ...... 8250 133 ...... 7500 64 ...... 8375 134 ...... 7625 TABLE OF 806–824/851–869 MHZ 65 ...... 8500 135 ...... 7750 66 ...... 8625 136 ...... 7875 CHANNEL DESIGNATIONS 67 ...... 8750 137 ...... 8000 68 ...... 8875 138 ...... 8125 Base frequency 69 ...... 9000 139 ...... 8250 Channel No. (MHz) 70 ...... 9125 140 ...... 8375 1 ...... 851.0125 71 ...... 9250 141 ...... 8500 2 ...... 0375 72 ...... 9375 142 ...... 8625 3 ...... 0500 73 ...... 9500 143 ...... 8750 4 ...... 0625 74 ...... 9625 144 ...... 8875 5 ...... 0750 75 ...... 9750 145 ...... 9000 6 ...... 0875 76 ...... 9875 146 ...... 9125 7 ...... 1000 77 ...... 852.0125 147 ...... 9250 8 ...... 1125 78 ...... 0375 148 ...... 9375 9 ...... 1250 79 ...... 0500 149 ...... 9500 10 ...... 1375 80 ...... 0625 150 ...... 9625 11 ...... 1500 81 ...... 0750 151 ...... 9750 12 ...... 1625 82 ...... 0875 152 ...... 9875 13 ...... 1750 83 ...... 1000 153 ...... 853.0125 14 ...... 1875 84 ...... 1125 154 ...... 0375 15 ...... 2000 85 ...... 1250 155 ...... 0500 16 ...... 2125 86 ...... 1375 156 ...... 0625 17 ...... 2250 87 ...... 1500 157 ...... 0750 18 ...... 2375 88 ...... 1625 158 ...... 0875 19 ...... 2500 89 ...... 1750 159 ...... 1000 20 ...... 2625 90 ...... 1875 160 ...... 1125 21 ...... 2750 91 ...... 2000 161 ...... 1250 22 ...... 2875 92 ...... 2125 162 ...... 1375 23 ...... 3000 93 ...... 2250 163 ...... 1500 24 ...... 3125 94 ...... 2375 164 ...... 1625 25 ...... 3250 95 ...... 2500 165 ...... 1750 26 ...... 3375 96 ...... 2625 166 ...... 1875 27 ...... 3500 97 ...... 2750 167 ...... 2000 28 ...... 3625 98 ...... 2875 168 ...... 2125 29 ...... 3750 99 ...... 3000 169 ...... 2250 30 ...... 3875 100 ...... 3125 170 ...... 2375 31 ...... 4000 101 ...... 3250 171 ...... 2500 32 ...... 4125 102 ...... 3375 172 ...... 2625 33 ...... 4250 103 ...... 3500 173 ...... 2750 34 ...... 4375 104 ...... 3625 174 ...... 2875 35 ...... 4500 105 ...... 3750 175 ...... 3000 36 ...... 4625 106 ...... 3875 176 ...... 3125 37 ...... 4750 107 ...... 4000 177 ...... 3250 38 ...... 4875 108 ...... 4125 178 ...... 3375

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TABLE OF 806–824/851–869 MHZ TABLE OF 806–824/851–869 MHZ TABLE OF 806–824/851–869 MHZ CHANNEL DESIGNATIONS—Continued CHANNEL DESIGNATIONS—Continued CHANNEL DESIGNATIONS—Continued

Base frequency Base frequency Base frequency Channel No. (MHz) Channel No. (MHz) Channel No. (MHz)

179 ...... 3500 249 ...... 4625 319 ...... 2125 180 ...... 3625 250 ...... 4875 320 ...... 2375 181 ...... 3750 251 ...... 5125 321 ...... 2625 182 ...... 3875 252 ...... 5375 322 ...... 2875 183 ...... 4000 253 ...... 5625 323 ...... 3125 184 ...... 4125 254 ...... 5875 324 ...... 3375 185 ...... 4250 255 ...... 6125 325 ...... 3625 186 ...... 4375 256 ...... 6375 326 ...... 3875 187 ...... 4500 257 ...... 6625 327 ...... 4125 188 ...... 4625 258 ...... 6875 328 ...... 4375 189 ...... 4750 259 ...... 7125 329 ...... 4625 190 ...... 4875 260 ...... 7375 330 ...... 4875 191 ...... 5000 261 ...... 7625 331 ...... 5125 192 ...... 5125 262 ...... 7875 332 ...... 5375 193 ...... 5250 263 ...... 8125 333 ...... 5625 194 ...... 5375 264 ...... 8375 334 ...... 5875 195 ...... 5500 265 ...... 8625 335 ...... 6125 196 ...... 5625 266 ...... 8875 336 ...... 6375 197 ...... 5750 267 ...... 9125 337 ...... 6625 198 ...... 5875 268 ...... 9375 338 ...... 6875 199 ...... 6000 269 ...... 9625 339 ...... 7125 200 ...... 6125 270 ...... 9875 340 ...... 7375 201 ...... 6250 271 ...... 855.0125 341 ...... 7625 202 ...... 6375 272 ...... 0375 342 ...... 7875 203 ...... 6500 273 ...... 0625 343 ...... 8125 204 ...... 6625 274 ...... 0875 344 ...... 8375 205 ...... 6750 275 ...... 1125 345 ...... 8625 206 ...... 6875 276 ...... 1375 346 ...... 8875 207 ...... 7000 277 ...... 1625 347 ...... 9125 208 ...... 7125 278 ...... 1875 348 ...... 9375 209 ...... 7250 279 ...... 2125 349 ...... 9625 210 ...... 7375 280 ...... 2375 350 ...... 9875 211 ...... 7500 281 ...... 2625 351 ...... 857.0125 212 ...... 7625 282 ...... 2875 352 ...... 0375 213 ...... 7750 283 ...... 3125 353 ...... 0625 214 ...... 7875 284 ...... 3375 354 ...... 0875 215 ...... 8000 285 ...... 3625 355 ...... 1125 216 ...... 8125 286 ...... 3875 356 ...... 1375 217 ...... 8250 287 ...... 4125 357 ...... 1625 218 ...... 8375 288 ...... 4375 358 ...... 1875 219 ...... 8500 289 ...... 4625 359 ...... 2125 220 ...... 8625 290 ...... 4875 360 ...... 2375 221 ...... 8750 291 ...... 5125 361 ...... 2625 222 ...... 8875 292 ...... 5375 362 ...... 2875 223 ...... 9000 293 ...... 5625 363 ...... 3125 224 ...... 9125 294 ...... 5875 364 ...... 3375 225 ...... 9250 295 ...... 6125 365 ...... 3625 226 ...... 9375 296 ...... 6375 366 ...... 3875 227 ...... 9500 297 ...... 6625 367 ...... 4125 228 ...... 9625 298 ...... 6875 368 ...... 4375 229 ...... 9750 299 ...... 7125 369 ...... 4625 230 ...... 9875 300 ...... 7375 370 ...... 4875 231 ...... 854.0125 301 ...... 7625 371 ...... 5125 232 ...... 0375 302 ...... 7875 372 ...... 5375 233 ...... 0625 303 ...... 8125 373 ...... 5625 234 ...... 0875 304 ...... 8375 374 ...... 5875 235 ...... 1125 305 ...... 8625 375 ...... 6125 236 ...... 1375 306 ...... 8875 376 ...... 6375 237 ...... 1625 307 ...... 9125 377 ...... 6625 238 ...... 1875 308 ...... 9375 378 ...... 6875 239 ...... 2125 309 ...... 9625 379 ...... 7125 240 ...... 2375 310 ...... 9875 380 ...... 7375 241 ...... 2625 311 ...... 856.0125 381 ...... 7625 242 ...... 2875 312 ...... 0375 382 ...... 7875 243 ...... 3125 313 ...... 0625 383 ...... 8125 244 ...... 3375 314 ...... 0875 384 ...... 8375 245 ...... 3625 315 ...... 1125 385 ...... 8625 246 ...... 3875 316 ...... 1375 386 ...... 8875 247 ...... 4125 317 ...... 1625 387 ...... 9125 248 ...... 4375 318 ...... 1875 388 ...... 9375

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TABLE OF 806–824/851–869 MHZ TABLE OF 806–824/851–869 MHZ TABLE OF 806–824/851–869 MHZ CHANNEL DESIGNATIONS—Continued CHANNEL DESIGNATIONS—Continued CHANNEL DESIGNATIONS—Continued

Base frequency Base frequency Base frequency Channel No. (MHz) Channel No. (MHz) Channel No. (MHz)

389 ...... 9625 459 ...... 7125 529 ...... 4625 390 ...... 9875 460 ...... 7375 530 ...... 4875 391 ...... 858.0125 461 ...... 7625 531 ...... 5125 392 ...... 0375 462 ...... 7875 532 ...... 5375 393 ...... 0625 463 ...... 8125 533 ...... 5625 394 ...... 0875 464 ...... 8375 534 ...... 5875 395 ...... 1125 465 ...... 8625 535 ...... 6125 396 ...... 1375 466 ...... 8875 536 ...... 6375 397 ...... 1625 467 ...... 9125 537 ...... 6625 398 ...... 1875 468 ...... 9375 538 ...... 6875 399 ...... 2125 469 ...... 9625 539 ...... 7125 400 ...... 2375 470 ...... 9875 540 ...... 7375 401 ...... 2625 471 ...... 860.0125 541 ...... 7625 402 ...... 2875 472 ...... 0375 542 ...... 7875 403 ...... 3125 473 ...... 0625 543 ...... 8125 404 ...... 3375 474 ...... 0875 544 ...... 8375 405 ...... 3625 475 ...... 1125 545 ...... 8625 406 ...... 3875 476 ...... 1375 546 ...... 8875 407 ...... 4125 477 ...... 1625 547 ...... 9125 408 ...... 4375 478 ...... 1875 548 ...... 9375 409 ...... 4625 479 ...... 2125 549 ...... 9625 410 ...... 4875 480 ...... 2375 550 ...... 9875 411 ...... 5125 481 ...... 2625 551 ...... 862.0125 412 ...... 5375 482 ...... 2875 552 ...... 0375 413 ...... 5625 483 ...... 3125 553 ...... 0625 414 ...... 5875 484 ...... 3375 554 ...... 0875 415 ...... 6125 485 ...... 3625 555 ...... 1125 416 ...... 6375 486 ...... 3875 556 ...... 1375 417 ...... 6625 487 ...... 4125 557 ...... 1625 418 ...... 6875 488 ...... 4375 558 ...... 1875 419 ...... 7125 489 ...... 4625 559 ...... 2125 420 ...... 7375 490 ...... 4875 560 ...... 2375 421 ...... 7625 491 ...... 5125 561 ...... 2625 422 ...... 7875 492 ...... 5375 562 ...... 2875 423 ...... 8125 493 ...... 5625 563 ...... 3125 424 ...... 8375 494 ...... 5875 564 ...... 3375 425 ...... 8625 495 ...... 6125 565 ...... 3625 426 ...... 8875 496 ...... 6375 566 ...... 3875 427 ...... 9125 497 ...... 6625 567 ...... 4125 428 ...... 9375 498 ...... 6875 568 ...... 4375 429 ...... 9625 499 ...... 7125 569 ...... 4625 430 ...... 9875 500 ...... 7375 570 ...... 4875 431 ...... 859.0125 501 ...... 7625 571 ...... 5125 432 ...... 0375 502 ...... 7875 572 ...... 5375 433 ...... 0625 503 ...... 8125 573 ...... 5625 434 ...... 0875 504 ...... 8375 574 ...... 5875 435 ...... 1125 505 ...... 8625 575 ...... 6125 436 ...... 1375 506 ...... 8875 576 ...... 6375 437 ...... 1625 507 ...... 9125 577 ...... 6625 438 ...... 1875 508 ...... 9375 578 ...... 6875 439 ...... 2125 509 ...... 9625 579 ...... 7125 440 ...... 2375 510 ...... 9875 580 ...... 7375 441 ...... 2625 511 ...... 861.0125 581 ...... 7625 442 ...... 2875 512 ...... 0375 582 ...... 7875 443 ...... 3125 513 ...... 0625 583 ...... 8125 444 ...... 3375 514 ...... 0875 584 ...... 8375 445 ...... 3625 515 ...... 1125 585 ...... 8625 446 ...... 3875 516 ...... 1375 586 ...... 8875 447 ...... 4125 517 ...... 1625 587 ...... 9125 448 ...... 4375 518 ...... 1875 588 ...... 9375 449 ...... 4625 519 ...... 2125 589 ...... 9625 450 ...... 4875 520 ...... 2375 590 ...... 9875 451 ...... 5125 521 ...... 2625 591 ...... 863.0125 452 ...... 5375 522 ...... 2875 592 ...... 0375 453 ...... 5625 523 ...... 3125 593 ...... 0625 454 ...... 5875 524 ...... 3375 594 ...... 0875 455 ...... 6125 525 ...... 3625 595 ...... 1125 456 ...... 6375 526 ...... 3875 596 ...... 1375 457 ...... 6625 527 ...... 4125 597 ...... 1625 458 ...... 6875 528 ...... 4375 598 ...... 1875

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TABLE OF 806–824/851–869 MHZ TABLE OF 806–824/851–869 MHZ TABLE OF 806–824/851–869 MHZ CHANNEL DESIGNATIONS—Continued CHANNEL DESIGNATIONS—Continued CHANNEL DESIGNATIONS—Continued

Base frequency Base frequency Base frequency Channel No. (MHz) Channel No. (MHz) Channel No. (MHz)

599 ...... 2125 669 ...... 9625 739 ...... 7125 600 ...... 2375 670 ...... 9875 740 ...... 7375 601 ...... 2625 671 ...... 865.0125 741 ...... 7625 602 ...... 2875 672 ...... 0375 742 ...... 7875 603 ...... 3125 673 ...... 0625 743 ...... 8125 604 ...... 3375 674 ...... 0875 744 ...... 8375 605 ...... 3625 675 ...... 1125 745 ...... 8625 606 ...... 3875 676 ...... 1375 746 ...... 8875 607 ...... 4125 677 ...... 1625 747 ...... 9125 608 ...... 4375 678 ...... 1875 748 ...... 9375 609 ...... 4625 679 ...... 2125 749 ...... 9625 610 ...... 4875 680 ...... 2375 750 ...... 9875 611 ...... 5125 681 ...... 2625 751 ...... 867.0125 612 ...... 5375 682 ...... 2875 752 ...... 0375 613 ...... 5625 683 ...... 3125 753 ...... 0625 614 ...... 5875 684 ...... 3375 754 ...... 0875 615 ...... 6125 685 ...... 3625 755 ...... 1125 616 ...... 6375 686 ...... 3875 756 ...... 1375 617 ...... 6625 687 ...... 4125 757 ...... 1625 618 ...... 6875 688 ...... 4375 758 ...... 1875 619 ...... 7125 689 ...... 4625 759 ...... 2125 620 ...... 7375 690 ...... 4875 760 ...... 2375 621 ...... 7625 691 ...... 5125 761 ...... 2625 622 ...... 7875 692 ...... 5375 762 ...... 2875 623 ...... 8125 693 ...... 5625 763 ...... 3125 624 ...... 8375 694 ...... 5875 764 ...... 3375 625 ...... 8625 695 ...... 6125 765 ...... 3625 626 ...... 8875 696 ...... 6375 766 ...... 3875 627 ...... 9125 697 ...... 6625 767 ...... 4125 628 ...... 9375 698 ...... 6875 768 ...... 4375 629 ...... 9625 699 ...... 7125 769 ...... 4625 630 ...... 9875 700 ...... 7375 770 ...... 4875 631 ...... 864.0125 701 ...... 7625 771 ...... 5125 632 ...... 0375 702 ...... 7875 772 ...... 5375 633 ...... 0625 703 ...... 8125 773 ...... 5625 634 ...... 0875 704 ...... 8375 774 ...... 5875 635 ...... 1125 705 ...... 8625 775 ...... 6125 636 ...... 1375 706 ...... 8875 776 ...... 6375 637 ...... 1625 707 ...... 9125 777 ...... 6625 638 ...... 1875 708 ...... 9375 778 ...... 6875 639 ...... 2125 709 ...... 9625 779 ...... 7125 640 ...... 2375 710 ...... 9875 780 ...... 7375 641 ...... 2625 711 ...... 866.0125 781 ...... 7625 642 ...... 2875 712 ...... 0375 782 ...... 7875 643 ...... 3125 713 ...... 0625 783 ...... 8125 644 ...... 3375 714 ...... 0875 784 ...... 8375 645 ...... 3625 715 ...... 1125 785 ...... 8625 646 ...... 3875 716 ...... 1375 786 ...... 8875 647 ...... 4125 717 ...... 1625 787 ...... 9125 648 ...... 4375 718 ...... 1875 788 ...... 9375 649 ...... 4625 719 ...... 2125 789 ...... 9625 650 ...... 4875 720 ...... 2375 790 ...... 9875 651 ...... 5125 721 ...... 2625 791 ...... 868.0125 652 ...... 5375 722 ...... 2875 792 ...... 0375 653 ...... 5625 723 ...... 3125 793 ...... 0625 654 ...... 5875 724 ...... 3375 794 ...... 0875 655 ...... 6125 725 ...... 3625 795 ...... 1125 656 ...... 6375 726 ...... 3875 796 ...... 1375 657 ...... 6625 727 ...... 4125 797 ...... 1625 658 ...... 6875 728 ...... 4375 798 ...... 1875 659 ...... 7125 729 ...... 4625 799 ...... 2125 660 ...... 7375 730 ...... 4875 800 ...... 2375 661 ...... 7625 731 ...... 5125 801 ...... 2625 662 ...... 7875 732 ...... 5375 802 ...... 2875 663 ...... 8125 733 ...... 5625 803 ...... 3125 664 ...... 8375 734 ...... 5875 804 ...... 3375 665 ...... 8625 735 ...... 6125 805 ...... 3625 666 ...... 8875 736 ...... 6375 806 ...... 3875 667 ...... 9125 737 ...... 6625 807 ...... 4125 668 ...... 9375 738 ...... 6875 808 ...... 4375

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TABLE OF 806–824/851–869 MHZ Jackson, Jefferson, Leon, Liberty, Lawrence, Lincoln, Marion, McMinn, CHANNEL DESIGNATIONS—Continued Madison, Nassau, Okaloosa, Santa Rosa, McNairy, Meigs, Monroe, Moore, Polk, Taylor, Wakulla, Walton, Washington. Rhea, Sequatchie, Wayne. Georgia: Appling, Atkinson, Bacon, ■ Channel No. Base frequency 26. Section 90.615 is revised to read as (MHz) Baker, Baldwin, Banks, Barrow, Bartow, follows: Ben Hill, Berrien, Bibb, Bleckley, 809 ...... 4625 Brantley, Brooks, Bryan, Bulloch, Burke, § 90.615 Individual channels available in 810 ...... 4875 Butts, Calhoun, Camden, Candler, the General Category in 806–824/851–869 811 ...... 5125 Carroll, Catoosa, Charlton, Chatham, MHz band. 812 ...... 5375 The General Category will consist of 813 ...... 5625 Chattahoochee, Chattooga, Cherokee, 814 ...... 5875 Clarke, Clay, Clayton, Clinch, Cobb, channels 231–260 at locations farther 815 ...... 6125 Coffee, Colquitt, Columbia, Cook, then 110 km (68.4 miles) from the U.S./ 816 ...... 6375 Coweta, Crawford, Crisp, Dade, Dawson, Mexico border and 140 km (87 miles) 817 ...... 6625 Decatur, DeKalb, Dodge, Dooly, from the U.S./Canadian border. 818 ...... 6875 Dougherty, Douglas, Early, Echols, (a) Channels 231–260 will be 819 ...... 7125 Effingham, Elbert, Emanuel, Evans, available only to eligible applicants in 820 ...... 7375 the Public Safety Category until January 821 ...... 7625 Fannin, Fayette, Floyd, Forsyth, Franklin, Fulton, Gilmer, Glascock, 21, 2008. These same channels will be 822 ...... 7875 available only to eligible applicants in 823 ...... 8125 Glynn, Gordon, Grady, Greene, 824 ...... 8375 Gwinnett, Habersham, Hall, Hancock, the Public Safety or Critical 825 ...... 8625 Haralson, Harris, Hart, Heard, Henry, Infrastructure Industry Categories from 826 ...... 8875 Houston, Irwin, Jackson, Jasper, Jeff January 21, 2008. 827 ...... 9125 Davis, Jefferson, Jenkins, Johnson, Jones, (b) All entities will be eligible for 828 ...... 9375 Lamar, Lanier, Laurens, Lee, Liberty, licensing on Channels 231–260 after 829 ...... 9625 January 20, 2010. 830 ...... 9875 Lincoln, Long, Lowndes, Lumpkin, Macon, Madison, Marion, McDuffie, ■ 27. Revise § 90.617 to read as follows: McIntosh, Meriwether, Miller, Mitchell, ■ 25. Amend Subpart S by adding § 90.617 Frequencies in the 809.750–824/ Monroe, Montgomery, Morgan, Murray, § 90.614 to read as follows: 854.750–869 MHz, and 896–901/935–940 Muscogee, Newton, Oconee, Oglethorpe, MHz bands available for trunked, § 90.614 Cellular and non-cellular portions Paulding, Peach, Pickens, Pierce, Pike, conventional or cellular system use in non- of 806–824/851–869 MHz band for non- Polk, Pulaski, Putnam, Quitman, Rabun, border areas. border areas. Randolph, Richmond, Rockdale, Schley, Except for the counties and parishes The 806–824/851–869 MHz band Screven, Seminole, Spalding, Stephens, listed in § 90.614(c), the following (‘‘800 MHz band’’) will be divided as Stewart, Sumter, Talbot, Taliaferro, channels will be available at locations follows at locations farther than 110 km Tattnall, Taylor, Telfair, Terrell, farther then 110 km (68.4 miles) from (68.4 miles) from the U.S./Mexico Thomas, Tift, Toombs, Towns, Treutlen, the U.S./Mexico border and 140 km (87 border and 140 km (87 miles) from the Troup, Turner, Twiggs, Union, Upson, miles) from the U.S./Canadian border U.S./Canadian border (‘‘non-border Walker, Walton, Ware, Warren, (‘‘non-border areas’’). The channels in areas’’): Washington, Wayne, Webster, Wheeler, the counties and parishes listed in (a) 800 MHz cellular systems—as White, Whitfield, Wilcox, Wilkes, § 90.614(c) will be available in defined in § 90.7—are prohibited from Wilkinson, Worth. accordance with an agreement between operating on channels 1–550 in non- Louisiana: Catahoula, Concordia, Southern LINC and Nextel border areas. Madison, Tensas. Communications, Inc. The agreement (b) 800 MHz cellular systems—as Mississippi: Adams, Alcorn, Amite, will be approved by the Chief of the defined in § 90.7—are permitted to Attala, Calhoun, Carroll, Chickasaw, Wireless Telecommunications Bureau. operate on channels 551–830 in non- Choctaw, Claiborne, Clarke, Clay, (a) The channels listed in Table 1 and border areas. Copiah, Covington, Forrest, Franklin, paragraph (a)(1) of this section are (c) In the following counties and George, Greene, Grenada, Hancock, available for non-cellular operations to parishes, 800 MHz cellular systems—as Harrison, Hinds, Holmes, Itawamba, eligible applicants in the Public Safety defined in § 90.7—are permitted to Jackson, Jasper, Jefferson, Jefferson Category which consists of licensees operate on channels 411–830: Davis, Jones, Kemper, Lamar, eligible in the Public Safety Pool of Alabama: Autauga, Baldwin, Barbour, Lauderdale, Lawrence, Leake, Lee, subpart B of this part. 800 MHz cellular Bibb, Blount, Bullock, Butler, Calhoun, Lincoln, Lowndes, Madison, Marion, systems as defined in § 90.7 are Chambers, Cherokee, Chilton, Choctaw, Monroe, Montgomery, Neshoba, prohibited on these channels. These Clarke, Clay, Cleburne, Coffee, Colbert, Newton, Noxubee, Oktibbeha, Pearl frequencies are available in non-border Conecuh, Coosa, Covington, Crenshaw, River, Perry, Pike, Pontotoc, Prentiss, areas. Specialized Mobile Radio Cullman, Dale, Dallas, DeKalb, Elmore, Rankin, Scott, Simpson, Smith, Stone, Systems will not be authorized in this Escambia, Etowah, Fayette, Franklin, Tippah, Tishomingo, Union, Walthall, category. These channels are available Geneva, Greene, Hale, Henry, Houston, Warren, Wayne, Webster, Wilkinson, for intercategory sharing as indicated in Jackson, Jefferson, Lamar, Lauderdale, Winston, Yazoo. § 90.621(e). Lawrence, Lee, Limestone, Lowndes, North Carolina: Cherokee, Clay, Macon, Madison, Marengo, Marion, Graham, Jackson, Macon. TABLE 1.—PUBLIC SAFETY POOL 806– Marshall, Mobile, Monroe, Montgomery, South Carolina: Abbeville, Aiken, 816/851–861 MHZ BAND CHANNELS Morgan, Perry, Pickens, Pike, Randolph, Allendale, Anderson, Bamberg, [70 channels] Russell, Shelby, St Clair, Sumter, Barnwell, Beaufort, Edgefield, Talladega, Tallapoosa, Tuscaloosa, Greenwood, Hampton, Jasper, Group No. Channel Nos. Walker, Washington, Wilcox, Winston. McCormick, Oconee. Florida: Bay, Calhoun, Escambia, Tennessee: Bledsoe, Bradley, 269 ...... 269–289–311–399– Franklin, Gadsden, Gulf, Holmes, Franklin, Giles, Hamilton, Hardin, 439

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TABLE 1.—PUBLIC SAFETY POOL 806– TABLE 2.—BUSINESS/INDUSTRIAL/LAND TABLE 3.—BUSINESS/INDUSTRIAL/LAND 816/851–861 MHZ BAND CHAN- TRANSPORTATION POOL 806–816/ TRANSPORTATION POOL 896–901/ NELS—Continued 851–861 MHZ BAND CHANNELS— 935–940 MHZ BAND CHANNELS— [70 channels] Continued Continued [100 channels] [199 channels] Group No. Channel Nos. Group No. Channel Nos. 71–72–73–74–75 ...... 271–272–273–274– 270 ...... 270–290–312–400– 275 440 325 ...... 325–365–405–445– 76–77–78–79–80 ...... 276–277–278–279– 279 ...... 279–299–319–339– 485 280 359 326 ...... 326–366–406–446– 91–92–93–94–95 ...... 291–292–293–294– 280 ...... 280–300–320–340– 486 295 360 327 ...... 327–367–407–447– 96–97–98–99–100 .... 296–297–298–299– 309 ...... 309–329–349–369– 487 300 389 342 ...... 342–382–422–462– 111–112–113–114– 311–312–313–314– 310 ...... 310–330–350–370– 502 115. 315 390 343 ...... 343–383–423–463– 116–117–118–119– 316–317–318–319– 313 ...... 313–353–393–441– 503 120. 320 461 344 ...... 344–384–424–464– 131–132–133–134– 331–332–333–334– 314 ...... 314–354–394–448– 504 135. 335 468 345 ...... 345–385–425–465– 136–137–138–139– 336–337–338–339– 321 ...... 321–341–361–381– 505 140. 340 419 346 ...... 346–386–426–466– 328 ...... 328–348–368–388– 506 151–152–153–154– 351–352–353–354– 420 347 ...... 347–387–427–467– 155. 355 351 ...... 351–379–409–429– 507 156–157–158–159– 356–357–358–359– 449 Single Channels ...... 261, 271, 281, 291, 160. 360 332 ...... 352–380–410–430– 301, 262, 272, 282, 171–172–173–174– 371–372–373–374– 450 292, 302, 263, 273, 175. 375 Single Channels ...... 391, 392, 401, 408, 283, 293, 303, 264, 176–177–178–179– 376–377–378–379– 421, 428, 459, 460, 274, 284, 294, 304, 180. 380 469, 470 265, 275, 285, 295, 191–192–193–194– 391–392–393–394– 305, 266, 276, 286, 195. 395 296, 306, 267, 277, (1) Channel numbers 1–230 are also 196–197–198–199– 396–397–398–399 287, 297, 307, 268, 200. available to eligible applicants in the 278, 288, 298, 308 Public Safety Category in non-border areas. The assignment of these channels (c) The channels listed in Table 3 are (d) Unless otherwise specified, the will be done in accordance with the available to applicants eligible in the channels listed in Tables 4A and 4B are policies defined in the Report and Order Industrial/Business Pool of subpart C of available for non-cellular operations of Gen. Docket No. 87–112 (See § 90.16). this part but exclude Special Mobilized only to eligibles in the SMR category— (2) [Reserved] Radio Systems as defined in § 90.603(c). which consists of Specialized Mobile Radio (SMR) stations and eligible end (b) Unless otherwise specified, the These frequencies are available in non- users. 800 MHz cellular systems, as channels listed in Table 2 are available border areas. Specialized Mobile Radio defined in § 90.7 are prohibited on these for non-cellular operations to applicants (SMR) systems will not be authorized on channels. These frequencies are eligible in the Industrial/Business Pool these frequencies. These channels are of subpart C of this part but exclude available for intercategory sharing as available in non-border areas. The Special Mobilized Radio Systems as indicated in § 90.621(e). spectrum blocks listed in Table 4A are defined in § 90.603(c). 800 MHz cellular For multi-channel systems, channels available for EA-based services (as systems, as defined in § 90.7, are may be grouped vertically or defined by § 90.681) prior to January 21, prohibited on these channels. These horizontally as they appear in the 2005. No new EA-based services will be frequencies are available in non-border following table. authorized after January 21, 2005. EA- areas. Specialized Mobile Radio (SMR) based licensees who operate non- TABLE 3.—BUSINESS/INDUSTRIAL/LAND systems will not be authorized on these cellular systems prior to January 21, frequencies. These channels are TRANSPORTATION POOL 896–901/ 2005 may choose to remain on these available for inter-category sharing as 935–940 MHZ BAND CHANNELS channels in the non-cellular portion of indicated in § 90.621(e). [199 channels] the 800 MHz band (as defined in § 90.614). These licensees may continue TABLE 2.—BUSINESS/INDUSTRIAL/LAND Channel Nos. to operate non-cellular systems and will TRANSPORTATION POOL 806–816/ be grandfathered indefinitely. The 11–12–13–14–15 ...... 211–212–213–214– 851–861 MHZ BAND CHANNELS 215 channels listed in Table 4B will be [100 channels] 16–17–18–19–20 ...... 216–217–218–219– available for site-based licensing after 220 January 21, 2005 in any Economic Area Group No. Channel Nos. 31–32–33–34–35 ...... 231–232–233–234– where no EA-based licensee is 235 authorized for these channels. 322 ...... 322–362–402–442– 36–37–38–39–40 ...... 236–237–238–239– 482 240 323 ...... 323–363–403–443– 51–52–53–54–55 ...... 251–252–253–254– 483 255 324 ...... 324–364–404–444– 56–57–58–59–60 ...... 256–257–258–259– 484 260

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TABLE 4A.—EA-BASED SMR CAT- TABLE 4B.—SMR CATEGORY 806– TABLE 6.—SMR CATEGORY 896–901/ EGORY 806–816/851–861 MHZ 816/851–861 MHZ BAND CHANNELS 935–940 MHZ BAND CHANNELS— BAND CHANNELS FOR NON-CEL- FOR NON-CELLULAR OPERATIONS Continued LULAR OPERATIONS AVAILABLE AVAILABLE FOR SITE-BASED LICENS- [200 channels] PRIOR TO JANUARY 21, 2005 ING AFTER JANUARY 21, 2005— [80 channels] Continued Block Channel Nos. [80 channels] C ...... 41–42–43–44–45– Spectrum block Channel Nos. 46–47–48–49–50 Spectrum block Channel Nos. G ...... 311–351–391–431– D ...... 61–62–63–64–65– 66–67–68–69–70 471 337 ...... 337–377–417–457– E ...... 81–82–83–84–85– H ...... 312–352–392–432– 497 86–87–88–89–90 472 338 ...... 338–378–418–458– F ...... 101–102–103–104– I ...... 313–353–393–433– 498 105–106–107–108– 473 Single Channels ...... 431, 432, 433, 434, 109–110 J ...... 314–354–394–434– 471, 472, 473, 474, G ...... 121–122–123–124– 474 479, 480, 481, 488, 125–126–127–128– K ...... 315–355–395–435– 489, 490, 499, 500, 129–130 475 501, 508, 509, 510 L ...... 316–356–396–436– H ...... 141–142–143–144– 476 145–146–147–148– 149–150 M ...... 317–357–397–437– (e) The Channels listed in § 90.614(b) 477 and (c) are available to eligibles in the I ...... 161–162–163–164– 165–166–167–168– N ...... 318–358–398–438– SMR category—which consists of 169–170 478 Specialized Mobile Radio (SMR) J ...... 181–182–183–184– O ...... 331–371–411–451– stations and eligible end users. ESMR 185–186–187–188– 491 licensees which employ an 800 MHz 189–190 P ...... 332–372–412–452– cellular system, as defined in § 90.7, are K ...... 201–202–203–204– 492 permitted to operate on these channels 205–206–207–208– Q ...... 333–373–413–453– in non-border areas. ESMR licensees 209–210 493 authorized prior to January 21, 2005 L ...... 221–222–223–224– R ...... 334–374–414–454– may continue to operate, if they so 225–226–227–228– 494 choose, on the channels listed in Table 229–230 S ...... 335–375–415–455– M ...... 241–242–243–244– 495 5. These licensees will be grandfathered indefinitely. 245–246–247–248– T ...... 336–376–416–456– 249–250 496 TABLE 5.—ESMR CATEGORY 816– N ...... 261–262–263–264– U ...... 337–377–417–457– 265–266–267–268– 497 821/861–866 MHZ BAND CHANNELS 269–270 V ...... 338–378–418–458– FOR CELLULAR OPERATIONS IN NON- O ...... 281–282–283–284– 498 BORDER AREAS AVAILABLE PRIOR 285–286–287–288– TO JANUARY 21, 2005 289–290 P ...... 301–302–303–304– TABLE 4B.—SMR CATEGORY 806– [200 channels] 305–306–307–308– 816/851–861 MHZ BAND CHANNELS 309–310 FOR NON-CELLULAR OPERATIONS Spectrum block Channel Nos. Q ...... 321–322–323–324– AVAILABLE FOR SITE-BASED LICENS- 325–326–327–328– A ...... 511 through 530 329–330 ING AFTER JANUARY 21, 2005 B ...... 531 through 590 R ...... 341–342–343–344– [80 channels] C ...... 591 through 710 345–346–347–348– 349–350 Spectrum block Channel Nos. (f) The channels listed in Tables 6 are S ...... 361–362–363–364– available for operations only to eligibles 365–366–367–368– 315 ...... 315–355–395–435– 369–370 475 in the SMR category—which consists of T ...... 381–382–383–384– 316 ...... 316–356–396–436– Specialized Mobile Radio (SMR) 385–386–387–388– 476 stations and eligible end users. These 389–390 317 ...... 317–357–397–437– frequencies are available in non-border 477 areas. The spectrum blocks listed below 318 ...... 318–358–398–438– are available for EA-based services (g) Channels below 470 listed in 478 according to § 90.681. Tables 2 and 4B which are vacated by 331 ...... 331–371–411–451– ESMR licensees after January 21, 2005 491 TABLE 6.—SMR CATEGORY 896–901/ are available only to eligible applicants 332 ...... 332–372–412–452– 935–940 MHZ BAND CHANNELS in the Public Safety Category until 492 January 21, 2008. These same channels [200 channels] 333 ...... 333–373–413–453– will be available only to eligible 493 334 ...... 334–374–414–454– Block Channel Nos. applicants in the Public Safety or 494 Critical Infrastructure Industry 335 ...... 335–375–415–455– A ...... 1–2–3–4–5–6–7–8– Categories from January 21, 2008 until 495 9–10 January 20, 2010. After January 20, 2010 336 ...... 336–376–416–456– B ...... 21–22–23–24–25– these channels will revert back to their 496 26–27–28–29–30 original pool categories.

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(h) Channels below 470 listed in (ii) For channels 524 to 534—the horizontally as they appear in the Tables 2 and 4B which are vacated by minimum median desired signal level following table. Channels numbered licensees relocating to Channels 511– shall increase linearly from the values above 200 may be used only subject to 550 after January 21, 2005 are available specified in § 22.970(a)(1)(i) of this the power flux density limits stated in only to eligible applicants in the Public chapter and § 90.672(a)(1)(i) to ¥70 paragraph (a)(2) of this section: Safety Category until January 21, 2008. dBm; These same channels will be available (iii) For channels 534 to 550—the TABLE 1.—UNITED STATES/MEXICO only to eligible applicants in the Public minimum median desired signal level BORDER AREA, BUSINESS/INDUS- Safety or Critical Infrastructure Industry shall increase linearly from ¥70 dBm to TRIAL/LAND TRANSPORTATION POOL Categories from January 21, 2008 until ¥65 dBm. January 20, 2010. After January 20, 2010 (2) Portable units: 896–901/935–940 MHZ BAND these channels will revert back to their (i) For channels 511 to 524—the [199 Channels] original pool categories. minimum median desired signal levels (i) Special Mobilized Radio Systems specified in § 22.970(a)(1)(i) of this Channel Nos. licensees who operate non-cellular chapter and § 90.672(a)(1)(i) shall apply; systems on any of the public safety (ii) For channels 524 to 530—the 11–12–13–14–15 131–132–133–134– channels listed in Table 1 prior to minimum median desired signal level 135 January 21, 2005 are grandfathered and shall increase linearly from the values 16–17–18–19–20 136–137–138–139– may continue to operate on these specified in § 22.970(a)(1)(i) of this 140 channels indefinitely. These chapter and § 90.672(a)(1)(i) to ¥80 31–32–33–34–35 231–232–233–234– grandfathered licensees will be dBm; 235 (iii) For channels 530 to 534—the 36–37–38–39–40 236–237–238–239– prohibited from operating 800 MHz 240 minimum median desired signal level cellular systems as defined in § 90.7. 51–52–53–54–55 171–172–173–174– Site-based licensees who are shall increase linearly from ¥80 dBm to ¥ 175 grandfathered on any of the public 70 dBm; 56–57–58–59–60 176–177–178–179– safety channels listed in Table 1 may (iv) For channels 534 to 550—the 180 modify their license only if they obtain minimum median desired signal level 71–72–74–75 271–272–273–274– concurrence from a certified public shall increase linearly from ¥70 dBm to 275 safety coordinator in accordance with ¥65 dBm. 76–77–78–79–80 276–277–278–279– § 90.175(c). Grandfathered EA-based ■ 28. Amend § 90.619 by revising the 280 licensees, however, are exempt from any section heading and paragraphs (a), (b), 91–92–93–94–95 211–212–213–214– of the frequency coordination (c) and (d) introductory text to read as 215 requirements of § 90.175 as long as their follows. 96–97–98–99–100 216–217–218–219– operations remain within the Economic 220 Area defined by their license in § 90.619 Operations within the U.S./Mexico 111–112–113–114– 311–312–313–314– accordance with the requirements of and U.S./Canada border areas. 115 315 § 90.683(a). (a) Use of Frequencies in 800 MHz 116–117–118–119– 316–317–318–319– (j) Licensees operating ESMR systems Band in Mexico Border Region. All 120 320 in the non-cellular portion of the band operations in the 806–824/851–869 151–152–153–154– 351–352–353–354– (as defined in § 90.614) prior to January MHz band within 110 km (68.4 miles) 155 355 21, 2005 may elect to continue operating of the U.S./Mexico border (‘‘Mexico 156–157–158–159– 356–357–358–359– 160 360 in the non-cellular portion of the band. border region’’) shall be in accordance with international agreements between 191–192–193–194– 391–392–393–394– These licensees will be permitted to 195 395 continue operating 800 MHz cellular the U.S. and Mexico. Channels 231–710 196–197–198–199– 396–397–398–399 systems (as defined in § 90.7) in the are offset 12.5 kHz lower in frequency 200 non-cellular portion of the band. These than those specified in the table in 251–252–253–254– 331–332–333–334– licensees will be grandfathered § 90.613. Stations located on Mt. 255 335 indefinitely subject to the provisions of Lemmon, serving the Tucson, AZ area, 256–257–258–259– 336–337–338–339– §§ 90.673, 90.674 and 90.675. will only be authorized offset 260 340 (k) Licensees may operate systems frequencies. 291–292–293–294– 371–372–373–374– other than 800 MHz cellular systems (as (b) Use of Frequencies in 900 MHz 295 375 defined in § 90.7) on Channels 511–550 Band in Mexico Border Region. All 296–297–298–299– 376–377–378–379– at any location vacated by an EA-based operations in the 896–901/935–940 300 380 SMR licensee. For operations on these MHz band within the Mexico border channels, unacceptable interference (as region shall be in accordance with (2) The channels listed in Table 2 of defined in § 22.970 of this chapter and international agreements between the this section are available for operations § 90.672) will be deemed to occur only U.S. and Mexico. only to eligibles in the SMR category— at sites where the following median (1) The channels listed in Table 1 which consists of Specialized Mobile desired signals are received (rather than below are available to applicants Radio (SMR) stations and eligible end eligible in the Industrial/Business Pool those specified in § 22.970(a)(1)(i) of users. These frequencies are available in of subpart C of this part but exclude this chapter and § 90.672(a)(1)(i)). The the Mexico border region. The spectrum minimum required median desired Special Mobilized Radio Systems as blocks listed in the table below are signal, as measured at the R.F. input of defined in § 90.603(c). These available for EA-based services the receiver, will be as follows: frequencies are available within the (1) Mobile units: Mexico border region. Specialized according to § 90.681. (i) For channels 511 to 524—the Mobile Radio (SMR) systems will not be minimum median desired signal levels authorized on these frequencies. specified in § 22.970(a)(1)(i) of this For multi-channel systems, channels chapter and § 90.672(a)(1)(i) shall apply; may be grouped vertically or

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TABLE 2.—UNITED STATES-MEXICO TABLE 3.—LIMITS OF EFFECTIVE RADI- § 90.621 Selection and assignment of BORDER AREA, SMR CATEGORY ATED POWER (ERP) COR- frequencies. 896–901/935–940 MHZ BAND RESPONDING TO ANTENNA HEIGHTS (a) Applicants for frequencies in the Public Safety and Business/Industrial/ [200 Channels] OF BASE STATIONS IN THE 896–901/ Land Transportation Categories must 935–940 MHZ BANDS WITHIN 110 Block Channel Nos. specify on the application the KILOMETERS (68.4 MILES) OF THE frequencies on which the proposed A ...... 1–2–3–4–5–6–7–8–9–10 MEXICAN BORDER—Continued system will operate pursuant to a B ...... 21–22–23–24–25–26–27–28–29–30 recommendation by the applicable C ...... 41–42–43–44–45–46–47–48–49–50 Antenna height above mean sea level ERP in frequency coordinator. Applicants for D ...... 61–62–63–64–65–66–67–68–69–70 watts frequencies in the SMR Category must E ...... 81–82–83–84–85–86–87–88–89–90 Meters Feet (maximum) request specific frequencies by F ...... 101–102–103–104–105–106–107– including in their applications the 108–109–110 1067–1219 ...... 3501–4000 75 frequencies requested. G ...... 121–122–123–124–125–126–127– 1220–1371 ...... 4000–4500 70 128–129–130 1372–1523 ...... 4501–5000 65 * * * * * H ...... 141–142–143–144–145–146–147– Above 1523 ...... Above 5000 5 (b) Stations authorized on frequencies 148–149–150 listed in this subpart, except for those I ...... 161–162–163–164–165–166–167– stations authorized pursuant to 168–169–170 (4) All channels in the 896–901/935– paragraph (g) of this section and EA- J ...... 181–182–183–184–185–186–187– 940 MHz band are available for based and MTA-based SMR systems, 188–189–190 assignment to U.S. stations within the will be assigned frequencies solely on K ...... 201–202–203–204–205–206–207– Mexico border region if the maximum 208–209–210 the basis of fixed distance separation power flux density (pfd) of the station’s criteria. The separation between co- L ...... 221–222–223–224–225–226–227– transmitted signal at any point at or 228–229–230 channel systems will be a minimum of M ...... 241–242–243–244–245–246–247– beyond the border does not exceed 113 km (70 mi) with one exception. For ¥ 2 248–249–250 107 dB (W/m ). The spreading loss incumbent licensees in Channel Blocks N ...... 261–262–263–264–265–266–267– must be calculated using the free space G through V, that have received the 268–269–270 formula taking into account any antenna consent of all affected parties or a O ...... 281–282–283–284–285–286–287– discrimination in the direction of the certified frequency coordinator to utilize 288–289–290 border. Authorizations for stations using an 18 dBµV/m signal strength P ...... 301–302–303–304–305–306–307– channels allotted to Mexico on a 308–309–310 interference contour (see § 90.693), the primary basis will be secondary to separation between co-channel systems Q ...... 321–322–323–324–325–326–327– Mexican operations and conditioned to 328–329–330 will be a minimum of 173 km (107 mi). R ...... 341–342–343–344–345–346–347– require that licensees take immediate The following exceptions to these 348–349–350 action to eliminate any harmful separations shall apply: S ...... 361–362–363–364–365–366–367– interference resulting from the station’s (1) Except as indicated in paragraph ¥ 368–369–370 transmitted signal exceeding 107 dB (b)(4) of this section, no station in T ...... 381–382–383–384–385–386–387– (W/m2). Channel Blocks A through V shall be 388–389–390 (c) Use of 800 MHz Band in Canada less than 169 km (105 mi) distant from Channels numbered above 200 may only be Border Region. All operations in the a co-channel station that has been used subject to the power flux density limits at 806–824/851–869 MHz band within 140 granted channel exclusivity and or beyond the Mexico border as stated in km (87 miles) of the U.S./Canada border authorized 1 kW ERP on any of the paragraph (4) of this section. (‘‘Canada border region’’) shall be in following mountaintop sites: Santiago (3) The specific channels that are accordance with international Peak, Sierra Peak, Mount Lukens, available for licensing in the band 896– agreements between the U.S. and Mount Wilson (California). Except as 901/935–940 MHz within the Mexico Canada. indicated in paragraph (b)(4) of this border region are subject to Effective (d) Use of 900 MHz Band in Canada section, no incumbent licensee in Radiated Power (ERP) and Antenna Border Region. All operations in the Channel Blocks G through V that has Height limitations as indicated in Table 896–901/935–940 MHz band within the received the consent of all affected 3 below. parties or a certified frequency Canada border region shall be in µ accordance with international coordinator to utilize an 18 dB V/m TABLE 3.—LIMITS OF EFFECTIVE RADI- agreements between the U.S. and signal strength interference contour ATED POWER (ERP) COR- Canada. The following criteria shall shall be less than 229 km (142 mi) RESPONDING TO ANTENNA HEIGHTS govern the assignment of frequency distant from a co-channel station that OF BASE STATIONS IN THE 896–901/ pairs (channels) in the 896–901/935– has been granted channel exclusivity 935–940 MHZ BANDS WITHIN 110 940 MHz band for stations located in the and authorized 1 kW ERP on any of the KILOMETERS (68.4 MILES) OF THE U.S./Canada border area. They are following mountaintop sites: Santiago Peak, Sierra Peak, Mount Lukens, MEXICAN BORDER available for assignments for conventional or trunked systems in Mount Wilson (California). * * * * * Antenna height above mean ERP in accordance with applicable sections of sea level watts this subpart. (3) Except as indicated in paragraph (maximum) * * * * * (b)(4) of this section, stations in Channel Meters Feet Blocks A through V that have been ■ 0–503 ...... 0–1650 500 29. Amend § 90.621 by revising granted channel exclusivity and are 504–609 ...... 1651–2000 350 paragraphs (a), (b) introductory text, located in the State of Washington at the 610–762 ...... 2001–2500 200 (b)(1), (b)(3), (c), (e) introductory text, locations listed in the table below shall 764–914 ...... 2501–3000 140 (e)(1), (e)(2) introductory text, (e)(2)(i), be separated from co-channel stations 915–1066 ...... 3001–3500 100 (e)(2)(ii), (f), (g) and (h) to read as follows: by a minimum of 169 km (105 mi).

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Except as indicated in paragraph (b)(4) signal strength interference contour, km (142 mi). Locations within one mile of this section, incumbent licensees in have been granted channel exclusivity of the geographical coordinates listed in Channel Blocks G through V that have and are located in the State of the table below will be considered to be received the consent of all affected Washington at the locations listed in the at that site. parties or a certified frequency table below shall be separated from co- Note: Coordinates are referenced to coordinator to utilize an 18 dBµV/m channel stations by a minimum of 229 North American Datum 1983 (NAD83).

Site name North latitude West longitude

Mount Constitution ...... 48° 40′ 47.4″ 122° 50′ 28.7″ Lyman Mountain ...... 48° 35′ 41.4″ 122° 09′ 39.6″ Cultus Mountain ...... 48° 25′ 30.4″ 122° 08′ 58.5″ Gunsite Ridge ...... 48° 03′ 22.4″ 121° 51′ 41.5″ Gold Mountain ...... 47° 32′ 51.3″ 122° 46′ 56.5″ Buck Mountain ...... 47° 47′ 05.3″ 122° 59′ 34.6″ Cougar Mountain ...... 47° 32′ 39.4″ 122° 06′ 34.4″ Squak Mountain ...... 47° 30′ 14.4″ 122° 03′ 34.4″ Tiger Mountain ...... 47° 30′ 13.4″ 121° 58′ 32.4″ Devils Mountain ...... 48° 21′ 52.4″ 122° 16′ 06.6″ McDonald Mountain ...... 47° 20′ 11.3″ 122° 51′ 30.5″ Maynard Hill ...... 48° 00′ 58.3″ 122° 55′ 35.6″ North Mountain ...... 47° 19′ 07.3″ 123° 20′ 48.6″ Green Mountain ...... 47° 33′ 40.3″ 122° 48′ 31.5″ Capitol Peak ...... 46° 58′ 21.3″ 123° 08′ 21.5″ Rattlesnake Mountain ...... 47° 28′ 09.4″ 121° 49′ 17.4″ Three Sisters Mountain ...... 47° 07′ 19.4″ 121° 53′ 34.4″ Grass Mountain ...... 47° 12′ 14.1″ 121° 47′ 42.4″ Spar Pole Hill ...... 47° 02′ 51.4″ 122° 08′ 39.4″

* * * * * categories. Applications submitted (f) Licensees of channels in the (c) Conventional systems authorized pursuant to this paragraph must be filed Business/Industrial/Land on frequencies in the Public Safety in accordance with the rules governing Transportation Categories in the 896– (except for those systems that have other applications for commercial 901/935–940 MHz bands may request a participated in a formal regional channels, and will be processed in modification of the license, see § 1.947 planning process as described in accordance with those rules. Grant of of this chapter, to authorize use of the § 90.16) and Business/Industrial/Land requests submitted pursuant to this channels for commercial operation. The Transportation categories which have paragraph is subject to the following licensee may also, at the same time, or not met the loading levels necessary for conditions: thereafter, seek authorization to transfer channel exclusivity will not be afforded (i) A licensee that modifies its license or assign the license, see § 1.948 of this co-channel protection. to authorize commercial operations will chapter, to any person eligible for * * * * * not be authorized to obtain additional licensing in the General or SMR (e) Frequencies in the 809–817/854– 800 MHz Business/Industrial/Land categories. Applications submitted 862 MHz bands listed as available for Transportation category channels for pursuant to this paragraph must be filed in accordance with the rules governing eligibles in the Public Safety and sites located within 113 km (70 mi.) of other applications for commercial Business/Industrial/Land the station for which the license was channels, and will be processed in Transportation Categories are available modified, for a period of one year from accordance with those rules. for inter-category sharing under the the date the license is modified. This (g) Applications for Public Safety following conditions: provision applies to the licensee, its systems (both trunked and (1) Channels in the Public Safety and controlling interests and their affiliates, conventional) in the 806–809/851–854 Business/Industrial/Land as defined in § 1.2110 of this chapter. Transportation categories will be MHz bands will be assigned and available to eligible applicants in those (ii) With respect to licenses the initial protected based on the criteria categories only if there are no application for which was filed on or established in the appropriate regional frequencies in their own category and after November 9, 2000, requests plan. See § 90.16 and the Report and no public safety systems are authorized submitted pursuant to paragraph (e)(2) Order in General Docket 87–112. on those channels under consideration of this section may not be filed until five (h) Channel numbers 511–520, 551– to be shared. years after the date of the initial license 560, 591–600, 631–640, and 671–680 are (2) Notwithstanding paragraph (e)(5) grant. In the case of a license that is allocated for Basic Exchange of this section, licensees of channels in modified on or after November 9, 2000 Telecommunications Radio Service as the Business/Industrial/Land to add 800 MHz Business/Industrial/ described in § 22.757 of this chapter. Transportation category may request a Land Transportation frequencies or to The FCC has proposed to remove these modification of the license, see § 1.947 add or relocate base stations that expand channels from the rural radiotelephone of this chapter, to authorize use of the the licensee’s interference contour, service in WT Docket No. 03–103 (FCC channels for commercial operation. The requests submitted pursuant to 03–95) released April 28, 2003 (68 FR licensee may also, at the same time or paragraph (e)(2) of this section for these 4403 July 25, 2003) which is pending. thereafter, seek authorization to transfer frequencies or base stations may not be or assign the license, see § 1.948 of this filed until five years after such § 90.629 [Amended] chapter, to any person eligible for modification. ■ 30. Remove and reserve § 90.629 licensing in the General or SMR * * * * * paragraph (d).

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■ 31. Amend § 90.631 by revising Procedures and Process—Unacceptable compliant transceiver is entitled to paragraph (b) to read as follows: Interference interference protection. (b) Minimum Receiver Requirements. § 90.631 Trunked systems loading, § 90.672 Unacceptable interference to non- Voice transceivers capable of operating construction and authorization cellular 800 MHz licensees from ESMR or in the 806–824 MHz portion of the 800 requirements. Part 22 Cellular Radiotelephone systems. MHz band shall have the following * * * * * (a) Definition. Except as provided in minimum performance specifications in (b) Each applicant for a non-SMR 47 CFR 90.617(k), unacceptable order for the system in which such trunked system must certify that a interference to non-cellular licensees in transceivers are used to claim minimum of seventy (70) mobiles for the 800 MHz band will be deemed to entitlement to full protection against each channel authorized will be placed occur when the below conditions are unacceptable interference. (See into operation within five (5) years of met: paragraph (a)(2) of this section.) the initial license grant. Except for SMR (1) A transceiver at a site at which (1) Voice units intended for mobile systems licensed in the 809–816/854– interference is encountered: use: 75 dB intermodulation rejection 861 MHz band and as indicated in (i) Is in good repair and operating ratio; 75 dB adjacent channel rejection paragraph (i) of this section, if at the end condition, and is receiving: ratio; ¥116 dBm reference sensitivity. of five (5) years a trunked system is not (A) A median desired signal of ¥104 (2) Voice units intended for portable loaded to the prescribed levels and all dBm or higher, as measured at the R.F. use: 70 dB intermodulation rejection channels in the licensee’s category are input of the receiver of a mobile unit; ratio; 70 dB adjacent channel rejection assigned in the system’s geographic or ratio; ¥116 dBm reference sensitivity. area, authorizations for trunked ¥ channels not loaded to seventy (70) (B) A median desired signal of 101 § 90.673 Obligation to abate unacceptable mobile stations cancel automatically at dBm or higher, as measured at the R.F. interference. input of the receiver of a portable i.e. a rate that allows the licensee to retain (a) Strict Responsibility. Any licensee hand-held unit; and, either one channel for every one hundred who, knowingly or unknowingly, (100) mobiles loaded, plus one (ii) Is a voice transceiver: directly or indirectly, causes or additional channel. If a trunked system (A) With manufacturer published contributes to causing unacceptable has channels from more than one performance specifications for the interference to a non-cellular licensee in category, General Category channels are receiver section of the transceiver equal the 800 MHz band, as defined in this the first channels considered to cancel to, or exceeding, the minimum chapter, shall be strictly accountable to automatically. All non-SMR licensees standards set out in paragraph (b) of this abate the interference, with full initially authorized before June 1, 1993, section, and; cooperation and utmost diligence, in the that are within their original license (B) Receiving an undesired signal or shortest time practicable. Interfering term, or SMR licensees that are within signals which cause the measured licensees shall consider all feasible the term of a two-year authorization Carrier to Noise plus Interference (C/ interference abatement measures, granted in accordance with paragraph (i) (I+N)) ratio of the receiver section of including, but not limited to, the of this section, are subject to this said transceiver to be less than 20 dB, remedies specified in the interference condition. A licensee that has or; resolution procedures set forth in this authorized channels cancelled due to (iii) Is a non-voice transceiver chapter. This strict responsibility failure to meet the loading requirements receiving an undesired signal or signals obligation applies to all forms of of this section will not be authorized which cause the measured bit error rate interference, including out-of-band additional channels to expand that same (BER) (or some comparable emissions and intermodulation. system for a period of six months from specification) of the receiver section of (b) Joint and Several Responsibility. If the date of cancellation. said transceiver to be more than the two or more licensees knowingly or * * * * * value reasonably designated by the unknowingly, directly or indirectly, ■ 32. Amend § 90.645 by revising manufacturer. cause or contribute to causing paragraph (g) to read as follows: (2) Provided, however, that if the unacceptable interference to a non- receiver section of the mobile or cellular licensee in the 800 MHz band, § 90.645 Permissible operations. portable voice transceiver does not as defined in this chapter, such * * * * * conform to the standards set out in licensees shall be jointly and severally (g) Up to five (5) contiguous 809–816/ paragraph (b) of this section, then that responsible for abating interference, 854–861 band channels as listed in transceiver shall be deemed subject to with full cooperation and utmost §§ 90.615, 90.617, and 90.619 may be unacceptable interference only at sites diligence, in the shortest practicable authorized after justification for systems where the median desired signal time. This joint and several requiring more than the normal single satisfies the applicable threshold responsibility rule requires interfering channel bandwidth. If necessary, measured signal power in paragraphs licensees to consider all feasible licensees may trade channels amongst (a)(1)(i) of this section after an upward interference abatement measures, themselves in order to obtain adjustment to account for the difference including, but not limited to, the contiguous frequencies. Notification of in receiver section performance. The remedies specified in the interference such proposed exchanges shall be made upward adjustment shall be equal to the resolution procedures set forth in this to the appropriate frequency increase in the desired signal required chapter. This joint and several coordinator(s) and to the Commission to restore the receiver section of the responsibility rule applies to all forms by filing an application for license subject transceiver to the 20 dB C/(I+N) of interference, including out-of-band modification. ratio of paragraph (a)(1)(ii)(B) of this emissions and intermodulation. * * * * * section. The adjusted threshold levels (1) This joint and several ■ 33. Add §§ 90.672 through 90.677 to shall then define the minimum responsibility rule requires interfering subpart S and add an undesignated measured signal power(s) in lieu of licensees to consider all feasible center heading before § 90.672 to read as paragraphs (a)(1)(i) of this section at interference abatement measures, follows: which the licensee using such non- including, but not limited to, the

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remedies specified in the interference paragraph (a)(1) of this section, as soon (v) Incorporating filters into ESMR resolution procedures set forth in as possible and no later than 24 hours and/or part 22 Cellular Radiotelephone § 90.674(c). This joint and several of receipt of notification from a public system transmission equipment; responsibility rule applies to all forms safety/CII licensee. This response time (vi) Permanently changing ESMR and/ of interference, including out-of-band may be extended to 48 hours after or part 22 Cellular Radiotelephone emissions and intermodulation. receipt from other non-cellular licensees system frequencies; and (2) Any licensee that can show that its provided affected communications on (vii) Supplying interference-resistant signal does not directly or indirectly, these systems are not safety related. receivers to the affected public safety cause or contribute to causing (b) Interference analysis. ESMR licensee(s). If this technique is used, in unacceptable interference to a non- licensees—who receive an initial all circumstances, the ESMR and/or part cellular licensee in the 800 MHz band, notification described in paragraph (a) 22 Cellular Radiotelephone licensees as defined in this chapter, shall not be of this section—shall perform a timely shall be responsible for all costs thereof. held responsible for resolving analysis of the interference to identify (2) Whenever short-term interference unacceptable interference. the possible source. Immediate on-site abatement measures prove inadequate, Notwithstanding, any licensee that visits may be conducted when necessary the affected licensee shall, consistent receives an interference complaint from to complete timely analysis. Interference with but not compromising safety, make a public safety/CII licensee shall analysis must be completed and all necessary concessions to accepting respond to such complaint consistent corrective action initiated within 48 interference until a longer-term remedy with the interference resolution hours of the initial complaint from a can be implemented. procedures set forth in this chapter. public safety/CII licensee. This response (3) Discontinuing operations when clear and imminent danger exists. When § 90.674 Interference resolution time may be extended to 96 hours after the initial complaint from other non- a public safety licensee determines that procedures before, during and after band a continuing presence of interference reconfiguration. cellular licensees provided affected communications on these systems are constitutes a clear and imminent danger (a) Initial Notification. Any non- to life or property, the licensee causing cellular licensee operating in the 806– not safety related. Corrective action may be delayed if the affected licensee agrees the interference must discontinue the 824/851–869 MHz band who reasonably associated operation immediately, until believes it is receiving harmful in writing (which may be, but is not required to be, recorded via e-mail or a remedy can be identified and applied. interference, as described in § 90.672, The determination that a continuing shall provide an initial notification of other electronic means) to a longer period. presence exists that constitutes a clear the interference incident. This initial and imminent danger to life or property, notification of an interference incident (c) Mitigation Steps. (1) All ESMR and must be made by written statement that: shall be sent to all part 22 Cellular part 22 Cellular Radiotelephone (i) Is in the form of a declaration, Radiotelephone licensees and ESMR licensees who are responsible for notarized affidavit, or statement under licensees who operate cellular base causing unacceptable interference shall penalty or perjury, from an officer or stations (‘‘cell sites’’) within 1,524 take all affirmative measures to resolve executive of the affected public safety meters (5,000 feet) of the interference such interference. ESMR licensees licensee; incident. found to contribute to harmful (ii) Thoroughly describes the basis of (1) The initial notification of interference, as defined in § 90.672, the claim of clear and imminent danger; interference shall include the following shall resolve such interference in the (iii) Was formulated on the basis of information on interference: shortest time practicable. ESMR and either personal knowledge or belief after (i) The specific geographical location part 22 Cellular Radiotelephone due diligence; where the interference occurs, and the licensees must provide all necessary test (iv) Is not proffered by a contractor or time or times at which the interference apparatus and technical personnel other third party; and occurred or is occurring; skilled in the operation of such (v) Has been approved by the Chief of (ii) A description of its scope and equipment as may be necessary to the Wireless Telecommunication severity, including its source, if known; determine the most appropriate means Bureau or other designated Commission (iii) The relevant Commission of timely eliminating the interference. official. Prior to the authorized official licensing information of the party However, the means whereby making a determination that a clear and suffering the interference; and interference is abated or the cell imminent danger exists, the associated (iv) A single point of contact for the parameters that may need to be adjusted written statement must be served by party suffering the interference. is left to the discretion of involved hand-delivery or receipted fax on the (2) ESMR licensees, in conjunction ESMR and/or part 22 Cellular applicable offending licensee, with a with part 22 Cellular Radiotelephone Radiotelephone licensees, whose copy transmitted by the fastest available licensees, shall establish an electronic affirmative measures may include, but means to the Washington, DC office of means of receiving the initial not be limited to, the following the Commission’s Wireless notification described in paragraph techniques: Telecommunications Bureau. (a)(1) of this section. The electronic (i) Increasing the desired power of the § 90.675 Information exchange. system must be designed so that all public safety signal; appropriate 800 MHz ESMR and part 22 (a) Prior Coordination. Public safety/ Cellular Radiotelephone licensees can (ii) Decreasing the power of the ESMR CII licensees may notify an ESMR or be contacted about the interference and/or part 22 Cellular Radiotelephone part 22 Cellular Radiotelephone licensee incident with a single notification. The signal; that they wish to receive prior electronic system for receipt of initial (iii) Modifying the ESMR and/or part notification of the activation or notification of interference complaints 22 Cellular Radiotelephone systems modification of ESMR or part 22 must be operating no later than antenna height; Cellular Radiotelephone cell sites in February 22, 2005. (iv) Modifying the ESMR and/or part their area. Thereafter, the ESMR or part (3) ESMR licensees must respond to 22 Cellular Radiotelephone system 22 Cellular Radiotelephone licensee the initial notification described in antenna characteristics; must provide the following information

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to the public safety/CII licensee at least (3) Issuing the Draw Certificate to Moreover, the Transition Administrator 10 business days before a new cell site authorize and instruct the Letter of will not be certified by the Commission is activated or an existing cell site is Credit Trustee to draw down on the as a frequency coordinator. modified: Letter of Credit to pay relocation costs (1) Location; in connection with reconfiguring a § 90.677 Reconfiguration of the 806–824/ (2) Effective radiated power; 851–869 MHz band in order to separate licensee’s system. cellular systems from non-cellular systems. (3) Antenna height; (4) Establishing a relocation schedule (4) Channels available for use. on a NPSPAC region-by-region basis, In order to facilitate reconfiguration of (b) Purpose of Prior Coordination. The prioritizing the regions on the basis of the 806–824/851–869 MHz band (‘‘800 coordination of cell sites is for population. However, should a given MHz band’’) to separate cellular systems informational purposes only: public region be encountering unusually severe from non-cellular systems, Nextel safety/CII licensees are not afforded the amounts of unacceptable interference, Communications, Inc. (Nextel) may right to accept or reject the activation of that region may be moved up in priority. relocate incumbents within the 800 a proposed cell or to unilaterally require Any party disputing such a change in MHz band by providing ‘‘comparable changes in its operating parameters. The priority may refer the matter to the Chief facilities.’’ For the limited purpose of principal purposes of notification are to: of the Public Safety and Critical band reconfiguration, the provisions of (1) Allow a public safety/CII licensee Infrastructure Division, who hereby is § 90.157 shall not apply and inter- to advise the ESMR or part 22 Cellular delegated the authority to resolve such category sharing will be permitted Radiotelephone licensee whether it disputes. The Transition Administrator under all circumstances. Such believes a proposed cell will generate may direct that adjoining regions be relocation is subject to the following unacceptable interference; reconfigured simultaneously when provisions: (2) Permit ESMR or part 22 Cellular (a) Within thirty days of Commission conditions so require. Radiotelephone licensees to make (5) The Transition Administrator will approval of the Transition voluntary changes in cell parameters coordinate relocation of a NPSPAC Administrator, the Transition when a public safety licensee alerts Region’s NPSPAC channels with the Administrator described in § 90.676 will them to possible interference; and relevant Regional Planning provide the Commission with a (3) Rapidly identify the source if schedule detailing when band interference is encountered when the Committee(s) prior to commencing band reconfiguration in a NPSPAC Region. reconfiguration shall commence for cell is activated. each NPSPAC Region. The plan should (c) Public Safety Information (b) Once band reconfiguration commences in a given NPSPAC Region, also detail—by NPSPAC Region—which Exchange. (1) Upon request by an ESMR relocation option each non-Nextel or part 22 Cellular Radiotelephone the Transition Administrator will; (1) Monitor the retuning schedule and ESMR licensees has chosen. The Chief licensee, public safety/CII licensees who resolve any schedule delays or refer of the Public Safety and Critical operate radio systems in the 806–824/ same to the Public Safety and Critical Infrastructure Division of the Wireless 851–869 MHz shall provide the Infrastructure Division for resolution; Telecommunications Bureau will operating parameters of their radio (2) Coordinate with adjoining finalize and approve such a plan. The system to the ESMR or part 22 Cellular NPSPAC Regions to ensure that schedule shall provide for completion of Radiotelephone licensee. interference is not being caused to their band reconfiguration in no more than (2) Public safety licensees who existing facilities from relocated thirty-six months following release of a perform the information exchange as stations; public notice announcing the start date described in this section must notify the (3) Provide quarterly progress reports of reconfiguration in the first NPSPAC appropriate ESMR and part 22 Cellular to the Commission in such detail as the region. Relocation will commence Radiotelephone licensees prior to any Commission may require and include, according to the schedule set by the technical changes to their radio system. with such reports, certifications by Transition Administrator but all systems § 90.676 Transition administrator for Nextel and the relevant licensees that must have commenced reconfiguration reconfiguration of the 806–824/851–869 MHz relocation has been completed and that within thirty months of release of a band in order to separate cellular systems both parties agree on the amount public notice announcing the start date from non-cellular systems. received from the letter of credit of reconfiguration in the first NPSPAC The Transition Administrator will be proceeds in connection with relocation region. an independent party with no financial of the licensees’ facilities. The report (b) Voluntary negotiations. Thirty interest in any 800 MHz licensee; and shall include description of any days before the start date for each will be selected by a committee disputes that have arisen and the NPSPAC region, the Chief of the Public representative of 800 MHz licensees. manner in which they were resolved. Safety and Critical Infrastructure The Transition Administrator will serve These quarterly reports need not be Division of the Wireless both a ministerial role and a function audited; Telecommunications Bureau will issue similar to a special master in a judicial (4) Provide to the Public Safety and a public notice initiating a three-month proceeding. Critical Infrastructure Division, on the voluntary negotiation period. During (a) The duties of the Transition anniversary of January 21, 2005, an this voluntary negotiation period, Administrator will include, but not be audited statement of relocation funds Nextel and all incumbents may limited to: expended to date, including salaries and negotiate any mutually agreeable (1) Obtaining estimates from licensees expenses of Transition Administrator; relocation agreement. Nextel and regarding the cost of reconfiguring their (5) Facilitate resolution of disputes by relocating incumbents may agree to systems and ensuring that estimates mediation; or referral of the parties to conduct face-to-face negotiations or contain a firm work schedule. The alternative dispute resolution services; either party may elect to communicate Transition Administrator will retain (c) The Transition Administrator may with the other party through the copies of all estimates and make them not serve as the repository of funds used Transition Administrator. available to the Commission on request. in band reconfiguration, excepting such (c) Mandatory negotiations. If no (2) Mediating disputes regarding cost sums as Nextel may pay for the agreement is reached by the end of the estimates for reconfiguring a system. Transition Administrator’s services. voluntary period, a three-month

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mandatory negotiation period will begin proposed changes to any NPSPAC § 90.687 Special provisions regarding during which both Nextel and the channel. assignments and transfers of authorizations for incumbent SMR incumbents must negotiate in ‘‘good ■ 34. Amend subpart S by revising the faith.’’ Nextel and relocating licensees in the 809–824/854–869 MHz undesignated center heading before band. incumbents may agree to conduct face- § 90.681 to read as follows: to-face negotiations or either party may An SMR license initially authorized elect to communicate with the other Policies Governing the Licensing and on any of the channels listed in Tables party through the Transition Use of EA-Based SMR Systems in the 4 and 5 of § 90.617 may transfer or Administrator. All parties are charged 809–824/851–869 MHz Band assign its channel(s) to another entity subject to the provisions of § 1.948 of with the obligation of utmost ‘‘good ■ faith’’ in the negotiation process. Among 35. Revise § 90.681 to read as follows: this chapter and § 90.609(b). If the proposed transferee or assignee is the the factors relevant to a ‘‘good-faith’’ § 90.681 EA-based SMR service areas. determination are: EA licensee for the spectrum block to EA licenses in for channels 711 (1) Whether the party responsible for which the channel is allocated, such through 830 and Spectrum Blocks A paying the cost of band reconfiguration transfer or assignment presumptively has made a bona fide offer to relocate through V listed in Tables 4 and 5 of will be deemed to be in the public the incumbent to comparable facilities; § 90.617 are available in 175 Economic interest. However, such presumption (2) The steps the parties have taken to Areas (EAs) as defined in § 90.7. will be rebuttable. determine the actual cost of relocation ■ 36. Amend § 90.683 by revising ■ 39. Amend § 90.693 by revising to comparable facilities; and paragraph (a) introductory text to read as paragraphs (a), (c), and (d)(2) to read as (3) Whether either party has follows: follows: unreasonably withheld information, § 90.693 Grandfathering provisions for essential to the accurate estimation of § 90.683 EA-based SMR system operations. incumbent licensees. relocation costs and procedures, requested by the other party. The (a) EA-based licensees authorized in (a) General provisions. These provisions apply to ‘‘incumbent Transition Administrator may schedule the 809–824/854–869 MHz band licensees,’’ all 800 MHz licensees mandatory settlement negotiations and pursuant to § 90.681 of this part may authorized in the 809–821/854–866 mediation sessions and the parties must construct and operate base stations MHz band who obtained licenses or conform to such schedules. using any of the base station frequencies (d) Transition Administrator. If no identified in their spectrum block filed applications on or before December agreement is reached during either the anywhere within their authorized EA, 15, 1995. voluntary or mandatory negotiating provided that: * * * * * periods, all disputed issues shall be * * * * * (c) Special provisions for spectrum referred to the Transition Administrator blocks G through V. Incumbent ■ 37. Amend § 90.685 by revising licensees that have received the consent who shall mediate and attempt to paragraphs (a) and (b) to read as follows: resolve them within thirty working of all affected parties or a certified days. If disputed issues remain thirty § 90.685 Authorization, construction and frequency coordinator to utilize an 18 µ days after the end of the mandatory implementation of EA licenses. dB V/m signal strength interference contour shall have their service area negotiation period; the Transition (a) EA licenses in the 809–824/854– defined by their originally-licensed 36 Administrator shall forward the record 869 MHz band will be issued for a term dBµV/m field strength contour and their to the Chief of the Public Safety and not to exceed ten years. Additionally, interference contour shall be defined as Critical Infrastructure Division, together EA licensees generally will be afforded their originally-licensed 18 dBµV/m with advice on how the matter(s) may a renewal expectancy only for those field strength contour. The originally- be resolved. The Chief of the Public stations put into service after August 10, licensed contour shall be calculated Safety and Critical Infrastructure 1996. using the maximum ERP and the actual Division is hereby delegated the (b) EA licensees in the 809–824/854– HAAT along each radial. Incumbent authority to rule on disputed issues, de 869 MHz band must, within three years licensees seeking to utilize an 18 dBµV/ novo. of the grant of their initial license, m signal strength interference contour (e) Waiver Requests. Incumbents who construct and place into operation a shall first seek to obtain the consent of wish not to relocate according to the sufficient number of base stations to affected co-channel incumbents. When schedule may petition the Commission provide coverage to at least one-third of the consent of a co-channel licensee is for a waiver of the relocation obligation. the population of its EA-based service withheld, an incumbent licensee may Such a waiver would only be granted on area. Further, each EA licensee must submit to any certified frequency a strict non-interference basis. provide coverage to at least two-thirds coordinator an engineering study (f) Comparable Facilities. The of the population of the EA-based showing that interference will not replacement system provided to an service area within five years of the occur, together with proof that the incumbent must be at least equivalent to grant of their initial license. incumbent licensee has sought consent. the existing 800 MHz system with Alternatively, EA licensees in Channel Incumbent licensees are permitted to respect to the four factors described in blocks G through V in the 809–824/854– add, remove or modify transmitter sites § 90.699(d) part. 869 MHz band must provide substantial (g) Information Exchange. Absent within their original 18 dBµV/m field service to their markets within five agreement between parties, the strength contour without prior years of the grant of their initial license. Transition Administrator will be notification to the Commission so long Substantial service shall be defined as: responsible for determining the as their original 18 dBµV/m field ‘‘Service which is sound, favorable, and information that relocating incumbents strength contour is not expanded and substantially above a level of mediocre must supply in support of a relocation the station complies with the service.’’ agreement. Commission’s short-spacing criteria in (h) The relevant Regional Planning * * * * * §§ 90.621(b)(4) through 90.621(b)(6). Committee shall be informed of any ■ 38. Revise § 90.687 to read as follows: Incumbent licensee protection extends

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only to its 36 dBµV/m signal strength the order are published in the Rules and additional time in which to comply contour. Pursuant to the minor Regulations section in this issue. The with certain deadlines set forth in the modification notification procedure set Commission extended the deadlines in Order, released on August 6, 2004, a forth in § 1.947(b) of this chapter, the order to afford interested parties to the summary of which is published in the incumbent licensee must notify the proceeding additional time to comply Rules and Regulations section of this Commission within 30 days of any with certain deadlines that are set forth issue. For this reason, with the changes in technical parameters or in the full text version of the Order, exception of the statutory deadlines for additional stations constructed that fall released August 6, 2004. filing petitions for reconsideration and within the short-spacing criteria. See 47 DATES: The deadlines, as described in for seeking judicial review of the Order, CFR 90.621(b). SUPPLEMENTARY INFORMATION, are the Commission extends these deadlines (d) * * * extended an additional forty-five (45) by 45 days. For example, actions that (2) Special Provisions for Spectrum days. For example, actions that previously were required within thirty Blocks G through V. Incumbent previously were required within thirty (30) or sixty (60) days of Federal licensees that have received the consent (30) or sixty (60) days of Federal Register publication of the 800 MHz of all affected parties or a certified Register publication of the Order are Report and Order are now required by frequency coordinator to utilize an 18 now required by February 7, 2005, or February 7, 2005, or March 7, 2005, dBµV/m signal strength interference March 7, 2005, respectively. The respectively. The Commission is not contour operating at multiple sites may, Commission is not deferring the deferring the effective date of the rules after grant of EA licenses has been effective date of the rules in this in this proceeding published elsewhere completed, exchange multiple site proceeding published elsewhere in this in this issue. Specifically, the licenses for a single license. This single issue. Commission extends the following site license will authorize operations ADDRESSES: All filings must be deadlines an additional 45 days: throughout the contiguous and addressed to the Commission’s 2. The Commission extends the overlapping 36 dBµV/m field strength Secretary, Marlene H. Dortch, Office of deadlines contained in paragraph 342 of contours of the multiple sites. the Secretary, Federal Communications the Order. Paragraph 342 of the Order Incumbents exercising this license Commission, 445 12th Street, SW., Suite provides that: exchange option must submit specific TW–A325, Washington, DC 20554. One ‘‘pursuant to Section 309 and 316 of the information on Form 601 for each of (1) courtesy copy must be delivered to Communications Act of 1934, as amended, their external base sites after the close Roberto Mussenden, Esq. at the Federal 47 U.S.C. §§ 309, and 316, the licenses of all of the 800 SMR auction. The Communications Commission, Wireless 800 MHz band licensees (including, but not incumbent’s geographic license area is Telecommunications Bureau, Public limited to, Nextel Communications, Inc.), are defined by the contiguous and Safety and Critical Infrastructure hereby modified as specified in this Report overlapping 18 dBµV/m contours of its Division, 445 12th Street, SW., Suite 5– and Order; provided, however, that in the constructed and operational external event Nextel rejects any of the conditions for C140, Washington, DC 20554, or via e- modification required in this Report and base stations and interior sites that are mail, [email protected], and Order, all the modifications of all the 800 constructed within the construction one (1) copy must be sent to Best Copy MHz licenses specified in this Report and period applicable to the incumbent. and Printing, Inc., Portals II, 445 12th Order are suspended unless and until the Once the geographic license is issued, Street, SW., Room CY–B402, Commission orders otherwise. Nextel will be facilities that are added within an Washington, DC 20554, telephone 1– deemed to have rejected such conditions (a) incumbent’s existing footprint and that 800–378–3160, or via e-mail, http:// unless it files with the Commission a written are not subject to prior approval by the www.bcpiweb.com. acceptance of all such conditions within thirty days of the publication of this Report Commission will not be subject to FOR FURTHER INFORMATION CONTACT: John construction requirements. and Order in the Federal Register, or (b) if Evanoff, Esq. or Roberto Mussenden, it files a judicial appeal of this Report and [FR Doc. 04–24840 Filed 11–19–04; 8:45 am] Esq., Public Safety and Critical Order within thirty days of the publication of BILLING CODE 6712–01–P Infrastructure Division, Wireless this Report and Order in the Federal Telecommunications Bureau at (202) Register. Pursuant to Section 316(a)(1) of the 418–0680. Communications Act of 1934, as amended, 47 U.S.C. § 316(a)(1), publication of this FEDERAL COMMUNICATIONS SUPPLEMENTARY INFORMATION: This is a COMMISSION Report and Order in the Federal Register summary of a Public Notice released by shall constitute notification in writing of our the Federal Communications 47 CFR Parts 2, 22, 24, 74, 78 and 90 Order modifying Nextel’s 800 MHz licenses Commission on October 22, 2004, and those of all other 800 MHz licenses, and [WT Docket No. 02–55; ET Docket No. 00– extending certain deadlines set forth in of the grounds and reasons therefore, and 258; ET Docket No. 95–18, RM–9498; RM– the Order. Nextel and these other 800 MHz licensees 10024; FCC 04–253] 1. The extension of deadlines was shall have thirty days from the date of such prompted in order to avoid uncertainty publication to protest such Order.’’ The 800 MHz Public Safety Interference for Nextel Communications, Inc. 3. The Commission extends the Proceeding; Extension of Deadlines (Nextel) and certain other 800 MHz deadlines contained and referenced in AGENCY: Federal Communications licensees, while the Commission seeks paragraph 344 of the Order (as amended Commission. expedited comment on issues raised in by the Second Erratum in this docket ACTION: Final rule; extension of certain ex parte presentations. The released October 6, 2004). Paragraph compliance deadlines. request for comments is designed to 344, as amended, provides that: develop a full and complete record and ‘‘within sixty days of the publication of this SUMMARY: The Federal Communications to further the effective implementation Report and Order in the Federal Register, Commission extends certain deadlines of the 800 MHz band reconfiguration Nextel shall comply with the following set out in the Commission’s initial 800 process. These issues are published in conditions precedent to its operations on the MHz Report and Order (Order) released the Proposed Rules section of this issue. 1.9 GHz band: on August 6, 2004. The summary of the Therefore, the Commission believes it is • Nextel shall certify that it has obtained order and the rules issued pursuant to appropriate to provide affected parties an irrevocable letter of credit, in all material

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respects identical to that contained in licensees in the areas shown in rata share of Nextel’s costs to clear the top Appendix E hereto, which provides Appendix G.’’ thirty markets and relocate all fixed BAS assurances that $2.5 billion will be available 5. The Commission extends the facilities, regardless of market size, incurred for band reconfiguration, notwithstanding the Broadcast Auxiliary Service (BAS) during the thirty-six month reconfiguration financial condition of Nextel, or its process. Nextel shall be required to inform successor(s). relocation deadlines set out in the Commission and MSS licensees on • Nextel shall specify on the initial letter paragraph 346 of the Order (as whether it will or will not seek of credit and any subsequent letters of credit, numbered in the Second Erratum reimbursement from MSS licensees within a Trustee, acceptable to the Commission, released October 6, 2004). Paragraph twelve months after the effective date of this which shall draw upon and disburse funds 346 provides that, Nextel’s modified Report and Order.’’ in accordance with the terms thereof and the licenses authorizing operations within 7. This extension does not apply to Transition Administrator’s instructions. the 1.9 GHz band are conditioned on the statutory deadlines for filing Further, on the occasion of a material breach several requirements, including: by Nextel of its obligations hereunder, as petitions for reconsideration and for declared by the Commission, said trustee ‘‘Nextel shall certify to the Commission that seeking judicial review of the Order. shall receive the remaining balance of the all BAS facilities have been relocated within Also, the Commission is not deferring letter(s) of credit to hold in trust and disburse thirty months after the effective date of this the effective date of the rules set forth in accordance with the terms of this Report Report and Order. If Nextel fails to meet this in Appendix C of the initial Order and and Order. Said funds shall be devoted benchmark, for reasons that Nextel could published elsewhere in the Rules and reasonably have avoided, the Commission exclusively to reconfiguration of the 800 Regulations section of this issue, MHz band except as otherwise provided in will determine whether forfeitures should be this Report and Order. imposed and/or whether Nextel licenses, including the effective dates of technical • Nextel shall deliver an opinion letter including, but not limited to, its 1.9 GHz standards and procedural mechanisms from counsel clearly stating, subject only to licenses, should be revoked.’’ adopted in the Order to abate customary assumptions, limitations and 6. The Commission extends the BAS unacceptable interference. qualifications, that in a proceeding under Federal Communications Commission. Title 11 of the United States Code, 11 U.S.C. relocation deadlines set forth in Section 101 et seq. (the ‘‘Bankruptcy Code’’), Paragraph 352 of the Order (as Michael J. Wilhelm, in which Nextel is the debtor, the bankruptcy numbered in the Second Erratum Chief, Public Safety and Critical court would not treat the Letter of Credit or released on October 6, 2004). Paragraph Infrastructure Division, Wireless proceeds of the Letter of Credit as property 352 provides that, ‘‘as a condition on Telecommunications Bureau, Federal of Nextel’s bankruptcy estate under Section Nextel’s 1.9 GHz licenses, Nextel shall, Communications Commission. 541 of the Bankruptcy Code. The scope of the as described herein, relocate all BAS [FR Doc. 04–25806 Filed 11–19–04; 8:45 am] opinion letter must also cover such other licensees in the 1990–2025 MHz band BILLING CODE 6712–01–P opinions as the Commission shall request. The opinion letter must contain detailed within thirty months after the effective legal analysis of the basis of counsel’s date of this Report and Order.’’ In this opinion. A draft opinion letter must be connection, Section 352 provides that DEPARTMENT OF DEFENSE submitted for review and approval by the Nextel shall comply with certain Commission’s Office of General Counsel requirements, which include, but are 48 CFR Part 211 prior to issuance of the letter. Bankruptcy not limited to: Defense Federal Acquisition counsel, and, if applicable, counsel’s firm, • must have a Martindale-Hubbell rating of ‘‘Nextel shall file with the Commission Regulation Supplement; Technical ‘‘A/V’’ and must satisfy the Commission in and copy the MSS licensees within thirty Amendments all other respects. days after the effective date of this Report • Nextel shall provide a letter or letters, in and Order its plan for the relocation of BAS AGENCY: Department of Defense (DoD). content satisfactory to the Commission, from operations in the markets that will be ACTION: Final rule. any and all parties having a financial or relocated during stage one (i.e., relocations equitable interest in any existing or proposed made within eighteen months after the SUMMARY: DoD is making technical effective date of this Report and Order).’’ 800 MHz system, whether in the United • amendments to the Defense Federal States, Mexico or Canada, and connected in ‘‘Nextel shall follow a negotiation period Acquisition Regulation Supplement to any way to Nextel by way of being a for stage one relocations that ends May 31, 2005 and that ends March 31, 2006 for stage update the Internet address for DoD subsidiary, partner, or otherwise; to the effect specifications and standards. that such parties are bound to perform the two relocations (i.e., relocations made within EFFECTIVE DATE: obligations imposed on Nextel herein to the thirty months after the effective date of this November 22, 2004. Report and Order).’’ FOR FURTHER INFORMATION CONTACT: Ms. extent such obligations are necessary or • desirable in the completion of ‘‘Nextel shall file progress reports within Michele Peterson, Defense Acquisition reconfiguration of the 800 MHz band. twelve months and twenty-four months after Regulations Council, the effective date of this Report and Order on • Nextel shall obtain the Commission’s OUSD(AT&L)DPAP(DAR), IMD 3C132, approval of all documents it submits the status of the transition, including identifying the markets that will be relocated 3062 Defense Pentagon, Washington, DC pursuant to this paragraph. 20301–3062. Telephone (703) 602–0311; • Nextel shall file with the Commission an during stage one, and all remaining markets that will be relocated during stage two.’’ facsimile (703) 602–0350. acknowledgement that meets the • requirements of paragraph 87 supra.’’ ‘‘Nextel shall certify to the Commission that all BAS facilities have been relocated List of Subjects in 48 CFR Part 211 4. The Commission extends the within thirty months after the effective date Government procurement. deadline contained in paragraph 345 of of this Report and Order. If Nextel fails to the Order (as numbered in the Second meet this benchmark, for reasons that Nextel Michele P. Peterson, Erratum released October 6, 2004). could reasonably have avoided, the Executive Editor, Defense Acquisition Paragraph 345, as numbered, provides Commission will determine whether Regulations Council. that that ‘‘within thirty days of the forfeitures should be imposed and/or ■ Therefore, 48 CFR Part 211 is amended whether Nextel licenses, including, but not publication of this Report and Order in as follows: limited to, its 1.9 GHz licenses, should be ■ 1. The authority citation for 48 CFR the Federal Register, Nextel and revoked.’’ Southern LINC shall deliver to the • ‘‘Nextel shall be entitled to seek Part 211 continues to read as follows: Commission an agreement for the reimbursement from MSS licensees that have Authority: 41 U.S.C. 421 and 48 CFR channel distribution for all 800 MHz entered the band for the MSS licensee’s pro Chapter 1.

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PART 211—DESCRIBING AGENCY This final rule is a result of the PART 217—SPECIAL CONTRACTING NEEDS DFARS Transformation initiative. The METHODS DFARS changes— 211.201 [Amended] Subpart 217.4—[Removed] • Remove DFARS Subpart 217.4, ■ 2. Section 211.201 is amended in which addresses the participation of paragraph (d) introductory text by ■ 2. Subpart 217.4 is removed. small disadvantaged business concerns removing ‘‘http://assist.daps.mil’’ and in leader company contracting. DoD PART 219—SMALL BUSINESS adding in its place ‘‘http:// rarely uses leader company contracting. PROGRAMS assist.daps.dla.mil’’. Incentives for major DoD contractors to [FR Doc. 04–25809 Filed 11–19–04; 8:45 am] ■ assist small disadvantaged business 3. Section 219.705–4 is amended in BILLING CODE 5001–08–P concerns are provided through the DoD paragraph (d) by revising the second Pilot Mentor-Prote´ge´ Program, in sentence to read as follows: DEPARTMENT OF DEFENSE accordance with DFARS Subpart 219.71 219.705–4 Reviewing the subcontracting and Appendix I. plan. 48 CFR Parts 217 and 219 • Lower the approval level at DFARS (d) * * * A small disadvantaged [DFARS Case 2003–D092] 219.705–4(d), from two levels above the business goal of less than five percent contracting officer to one level above the must be approved one level above the Defense Federal Acquisition contracting officer, for small business contracting officer. Regulation Supplement; Small subcontracting plans that contain a [FR Doc. 04–25825 Filed 11–19–04; 8:45 am] Disadvantaged Businesses and Leader small disadvantaged business goal of BILLING CODE 5001–08–P Company Contracting less than five percent. AGENCY: Department of Defense (DoD). DoD published a proposed rule at 69 ACTION: Final rule. FR 21996 on April 23, 2004. DoD DEPARTMENT OF DEFENSE received no comments on the proposed 48 CFR Part 219 SUMMARY: DoD has issued a final rule rule. Therefore, DoD has adopted the amending the Defense Federal proposed rule as a final rule without [DFARS Case 2003–D105] Acquisition Regulation Supplement change. (DFARS) to revise text pertaining to DoD Defense Federal Acquisition review of small business subcontracting This rule was not subject to Office of Regulation Supplement; Contracting plans, and to remove text pertaining to Management and Budget review under for Architect-Engineer Services leader company contracting. This rule is Executive Order 12866, dated a result of a transformation initiative September 30, 1993. AGENCY: Department of Defense (DoD). undertaken by DoD to dramatically ACTION: Final rule. B. Regulatory Flexibility Act change the purpose and content of the SUMMARY: DFARS. DoD has adopted as final, DoD certifies that this final rule will without change, an interim rule DATES: Effective November 22, 2004. not have a significant economic impact amending the Defense Federal FOR FURTHER INFORMATION CONTACT: Ms. on a substantial number of small entities Acquisition Regulation Supplement Robin Schulze, Defense Acquisition within the meaning of the Regulatory (DFARS) to implement Section 1427 of Regulations Council, Flexibility Act, 5 U.S.C. 601, et seq., the National Defense Authorization Act OUSD(AT&L)DPAP(DAR), IMD 3C132, because the rule deletes text that is for Fiscal Year 2004. Section 1427 3062 Defense Pentagon, Washington, DC seldom used and revises review increases, from $85,000 to $300,000, the 20301–3062. Telephone (703) 602–0326; procedures that are internal to DoD. threshold below which acquisitions for facsimile (703) 602–0350. Please cite C. Paperwork Reduction Act architect-engineer services for military DFARS Case 2003–D092. construction or family housing projects SUPPLEMENTARY INFORMATION: The Paperwork Reduction Act does are set aside for small business A. Background not apply, because the rule does not concerns. DFARS Transformation is a major impose any information collection DATES: Effective November 22, 2004. DoD initiative to dramatically change requirements that require the approval FOR FURTHER INFORMATION CONTACT: Mr. the purpose and content of the DFARS. of the Office of Management and Budget Euclides Barrera, Defense Acquisition The objective is to improve the under 44 U.S.C. 3501, et seq. Regulations Council, efficiency and effectiveness of the List of Subjects in 48 CFR Parts 217 and OUSD(AT&L)DPAP(DAR), IMD 3C132, acquisition process, while allowing the 219 3062 Defense Pentagon, Washington, DC acquisition workforce the flexibility to 20301–3062. Telephone (703) 602–0296; innovate. The transformed DFARS will Government procurement. facsimile (703) 602–0350. Please cite contain only requirements of law, DoD- DFARS Case 2003–D105. Michele P. Peterson, wide policies, delegations of FAR SUPPLEMENTARY INFORMATION: authorities, deviations from FAR Executive Editor, Defense Acquisition requirements, and policies/procedures Regulations Council. A. Background that have a significant effect beyond the ■ Therefore, 48 CFR Parts 217 and 219 DoD published an interim rule at 69 internal operating procedures of DoD or are amended as follows: FR 31909 on June 8, 2004, to implement a significant cost or administrative Section 1427 of the National Defense ■ impact on contractors or offerors. 1. The authority citation for 48 CFR Authorization Act for Fiscal Year 2004 Additional information on the DFARS Parts 217 and 219 continues to read as (Pub. L. 108–136). Section 1427 Transformation initiative is available at follows: amended 10 U.S.C. 2855 to increase, http://www.acq.osd.mil/dpap/dfars/ Authority: 41 U.S.C. 421 and 48 CFR from $85,000 to $300,000, the threshold transf.htm. chapter 1. below which acquisitions for architect-

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engineer services for military DEPARTMENT OF DEFENSE the proposed rule, and that comment construction or family housing projects supported the rule. Therefore, DoD has are set aside for small business 48 CFR Part 224 adopted the proposed rule as a final rule concerns. DoD received no comments [DFARS Case 2003–D038] without change. on the interim rule. Therefore, DoD has This rule was not subject to Office of adopted the interim rule as a final rule Defense Federal Acquisition Management and Budget review under without change. Regulation Supplement; Protection of Executive Order 12866, dated This rule was not subject to Office of Privacy and Freedom of Information September 30, 1993. Management and Budget review under AGENCY: Department of Defense (DoD). B. Regulatory Flexibility Act Executive Order 12866, dated September 30, 1993. ACTION: Final rule. DoD certifies that this final rule will not have a significant economic impact B. Regulatory Flexibility Act SUMMARY: DoD has issued a final rule on a substantial number of small entities amending the Defense Federal within the meaning of the Regulatory DoD has prepared a final regulatory Acquisition Regulation Supplement Flexibility Act, 5 U.S.C. 601, et seq., flexibility analysis consistent with 5 (DFARS) to delete text pertaining to the because deletion of the DFARS text does U.S.C. 604. The analysis is summarized applicability of the Privacy Act to not represent a change in DoD policy. as follows: certain contractor records. This rule is a Applicability of the Privacy Act is This rule finalizes an interim DFARS result of a transformation initiative adequately addressed in other DoD rule published on June 8, 2004, to undertaken by DoD to dramatically publications. implement Section 1427 of the National change the purpose and content of the C. Paperwork Reduction Act Defense Authorization Act for Fiscal DFARS. Year 2004 (Pub. L. 108–136). Section DATES: Effective November 22, 2004. The Paperwork Reduction Act does 1427 amended 10 U.S.C. 2855 to FOR FURTHER INFORMATION CONTACT: Mr. not apply because the rule does not increase, from $85,000 to $300,000, the Euclides Barrera, Defense Acquisition impose any information collection threshold below which acquisitions for Regulations Council, OUSD (AT&L) requirements that require the approval architect-engineer services for military DPAP (DAR), IMD 3C132, 3062 Defense of the Office of Management and Budget construction or family housing projects Pentagon, Washington, DC 20301–3062. under 44 U.S.C. 3501, et seq. are set aside for small business Telephone (703) 602–0296; facsimile List of Subjects in 48 CFR Part 224 concerns. DoD received no public (703) 602–0350. Please cite DFARS Case comments on the initial regulatory 2003–D038. Government procurement. flexibility analysis or the interim SUPPLEMENTARY INFORMATION: Michele P. Peterson, DFARS rule. Therefore, DoD has Executive Editor, Defense Acquisition adopted the interim rule as a final rule A. Background Regulations Council. without change. The rule will benefit DFARS Transformation is a major ■ Therefore, 48 CFR part 224 is amended small entities that perform architect- DoD initiative to dramatically change engineer services by increasing as follows: the purpose and content of the DFARS. ■ opportunities for these entities to 1. The authority citation for 48 CFR The objective is to improve the part 224 continues to read as follows: receive DoD contract awards. efficiency and effectiveness of the A copy of the analysis may be acquisition process, while allowing the Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. obtained from the point of contact acquisition workforce the flexibility to specified herein. innovate. The transformed DFARS will PART 224—PROTECTION OF PRIVACY contain only requirements of law, DoD- C. Paperwork Reduction Act AND FREEDOM OF INFORMATION wide policies, delegations of FAR The Paperwork Reduction Act does authorities, deviations from FAR 224.102 [Removed] not apply, because the rule does not requirements, and policies/procedures ■ 2. Section 224.102 is removed. that have a significant effect beyond the impose any information collection [FR Doc. 04–25827 Filed 11–19–04; 8:45 am] internal operating procedures of DoD or requirements that require the approval BILLING CODE 5001–08–P of the Office of Management and Budget a significant cost or administrative under 44 U.S.C. 3501, et seq. impact on contractors or offerors. Additional information on the DFARS DEPARTMENT OF DEFENSE List of Subjects in 48 CFR Part 219 Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/ Government procurement. 48 CFR Parts 227 and 252 transf.htm. Michele P. Peterson, This final rule is a result of the [DFARS Case 2003–D104] Executive Editor, Defense Acquisition DFARS Transformation initiative. The Defense Federal Acquisition Regulations Council. rule deletes DFARS 224.102, which Regulation Supplement; Written specifies that the Privacy Act (5 U.S.C. Interim Rule Adopted as Final Without Assurance of Technical Data 552a) does not apply to certain Conformity Change contractor records. The DFARS text is unnecessary, because this issue is AGENCY: ■ Accordingly, the interim rule Department of Defense (DoD). adequately addressed in DoD Regulation amending 48 CFR Part 219, which was ACTION: Final rule. 5400.11–R, Department of Defense published at 69 FR 31909 on June 8, Privacy Program, which is referenced in SUMMARY: DoD has adopted as final, 2004, is adopted as a final rule without DFARS 224.103. without change, an interim rule change. DoD published a proposed rule at 69 amending the Defense Federal [FR Doc. 04–25814 Filed 11–19–04; 8:45 am] FR 8152 on February 23, 2004. DoD Acquisition Regulation Supplement BILLING CODE 5001–08–P received one comment in response to (DFARS) to implement Section 844 of

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the National Defense Authorization Act is complete and accurate and in A. Background for Fiscal Year 2004. Section 844 compliance with contract requirements. eliminated the requirement for a DFARS Transformation is a major C. Paperwork Reduction Act contractor to furnish written assurance DoD initiative to dramatically change that technical data delivered to the The information collection the purpose and content of the DFARS. Government is complete and accurate requirements of the clause at DFARS The objective is to improve the and satisfies the requirements of the 252.227–7036, Declaration of Technical efficiency and effectiveness of the contract. Data Conformity, were previously acquisition process, while allowing the approved by the Office of Management acquisition workforce the flexibility to DATES: Effective November 22, 2004. and Budget under Control Number innovate. The transformed DFARS will FOR FURTHER INFORMATION CONTACT: Ms. 0704–0369. Elimination of the clause contain only requirements of law, DoD- Amy Williams, Defense Acquisition has reduced estimated annual public wide policies, delegations of FAR Regulations Council, reporting burden by 126,886 hours authorities, deviations from FAR OUSD(AT&L)DPAP(DAR), IMD 3C132, (estimated 507,545 declarations requirements, and policies/procedures 3062 Defense Pentagon, Washington, DC annually at .25 hours per declaration). that have a significant effect beyond the 20301–3062. Telephone (703) 602–0328; internal operating procedures of DoD or facsimile (703) 602–0350. Please cite List of Subjects in 48 CFR Parts 227 and a significant cost or administrative DFARS Case 2003–D104. 252 impact on contractors or offerors. SUPPLEMENTARY INFORMATION: Government procurement. Additional information on the DFARS A. Background Michele P. Peterson, Transformation initiative is available at Executive Editor, Defense Acquisition http://www.acq.osd.mil/dpap/dfars/ DoD published an interim rule at 69 Regulations Council. transf.htm. FR 31911 on June 8, 2004, to implement Section 844 of the National Defense Interim Rule Adopted as Final Without This final rule is a result of the Authorization Act for Fiscal Year 2004 Change DFARS Transformation initiative. The (Public Law 108–136). Section 844 rule deletes DFARS Subpart 235.70, ■ Accordingly, the interim rule amended 10 U.S.C. 2320(b) to eliminate Research and Development Streamlined amending 48 CFR Parts 227 and 252, the requirement for contractors to Contracting Procedures. This subpart which was published at 69 FR 31911 on furnish written assurance that delivered contains procedures for acquiring June 8, 2004, is adopted as a final rule technical data is complete and accurate research and development using a without change. and satisfies the requirements of the standard solicitation and contract contract. The interim rule removed the [FR Doc. 04–25823 Filed 11–19–04; 8:45 am] format and the capabilities of the World clause at DFARS 252.227–7036, BILLING CODE 5001–08–P Wide Web. These procedures have Declaration of Technical Data become obsolete, due to further Conformity, which implemented the advances in technology since their previous statutory requirement. Three DEPARTMENT OF DEFENSE creation. respondents submitted comments on the DoD published a proposed rule at 69 interim rule. All respondents supported 48 CFR Part 235 FR 8157 on February 23, 2004. DoD the rule. One respondent also recommended that the change be made [DFARS Case 2003–D058] received no comments on the proposed retroactive to reduce paperwork rule. Therefore, DoD has adopted the requirements for contracts currently in Defense Federal Acquisition proposed rule as a final rule without effect. DoD has made no change to the Regulation Supplement; Removal of change. rule as a result of this comment. The Obsolete Research and Development This rule was not subject to Office of Contracting Procedures interim rule became effective upon Management and Budget review under publication, on June 8, 2004. Consistent AGENCY: Department of Defense (DoD). Executive Order 12866, dated with FAR 1.108(d), the rule applies to September 30, 1993. ACTION: solicitations issued on or after the Final rule. B. Regulatory Flexibility Act effective date, but contracting officers SUMMARY: DoD has issued a final rule may, at their discretion, apply the amending the Defense Federal DoD certifies that this final rule will change to any existing contract with Acquisition Regulation Supplement not have a significant economic impact appropriate consideration. (DFARS) to delete obsolete procedures on a substantial number of small entities This rule was not subject to Office of for research and development within the meaning of the Regulatory Management and Budget review under contracting. This rule is a result of a Flexibility Act, 5 U.S.C. 601, et seq., Executive Order 12866, dated transformation initiative undertaken by because the rule deletes research and September 30, 1993. DoD to dramatically change the purpose development contracting procedures B. Regulatory Flexibility Act and content of the DFARS. that are no longer in use. DATES: Effective November 22, 2004. DoD certifies that this final rule will C. Paperwork Reduction Act not have a significant economic impact FOR FURTHER INFORMATION CONTACT: Mr. on a substantial number of small entities Thaddeus Godlewski, Defense The Paperwork Reduction Act does within the meaning of the Regulatory Acquisition Regulations Council, not apply because the rule does not Flexibility Act, 5 U.S.C. 601, et seq., OUSD(AT&L)DPAP(DAR), IMD 3C132, impose any information collection because elimination of the requirement 3062 Defense Pentagon, Washington, DC requirements that require the approval for a contractor to provide written 20301–3062. Telephone (703) 602–2022; of the Office of Management and Budget assurance of technical data conformity facsimile (703) 602–0350. Please cite under 44 U.S.C. 3501, et seq. does not diminish the contractor’s DFARS Case 2003–D058. obligation to provide technical data that SUPPLEMENTARY INFORMATION:

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List of Subjects in 48 CFR Part 235 that have a significant effect beyond the PART 251—USE OF GOVERNMENT Government procurement. internal operating procedures of DoD or SOURCES BY CONTRACTORS a significant cost or administrative Michele P. Peterson, impact on contractors or offerors. ■ 2. Section 251.102 is revised to read as Executive Editor, Defense Acquisition Additional information on the DFARS follows: Regulations Council. Transformation initiative is available at 251.102 Authorization to use Government ■ Therefore, 48 CFR Part 235 is amended http://www.acq.osd.mil/dpap/dfars/ supply sources. as follows: transf.htm. (e) When authorizing contractor use of This final rule is a result of the ■ 1. The authority citation for 48 CFR Government supply sources, follow the DFARS Transformation initiative. The Part 235 continues to read as follows: procedures at PGI 251.102. DFARS changes include— (3)(ii) The contracting officer may also Authority: 41 U.S.C. 421 and 48 CFR • Deletion of text at DFARS 251.102 Chapter 1. authorize the contractor to use the DD containing procedures for authorizing a Form 1155 when requisitioning from the contractor to use Government supply PART 235—RESEARCH AND Department of Veterans Affairs. sources. Text on this subject has been DEVELOPMENT CONTRACTING (f) The authorizing agency is also relocated to the new DFARS companion responsible for promptly considering resource, Procedures, Guidance, and Subpart 235.70—[Removed] requests of the DoD supply source for Information (PGI), available at http:// authority to refuse to honor requisitions ■ 2. Subpart 235.70 is removed. www.acq.osd.mil/dpap/dars/pgi. • from a contractor that is indebted to [FR Doc. 04–25824 Filed 11–19–04; 8:45 am] Deletion of text at DFARS 251.105 regarding contractor payment for DoD and has failed to pay proper BILLING CODE 5001–08–P purchases from Government supply invoices in a timely manner. sources. This subject is addressed in the 251.105 [Removed] DEPARTMENT OF DEFENSE clause at DFARS 252.251–7000 as ■ amended by this rule. 3. Section 251.105 is removed. 48 CFR Parts 251 and 252 DoD published a proposed rule at 69 PART 252—SOLICITATION FR 8159 on February 23, 2004. DoD [DFARS Case 2003–D045] PROVISIONS AND CONTRACT received no comments on the proposed CLAUSES Defense Federal Acquisition rule. Therefore, DoD has adopted the ■ Regulation Supplement; Contractor proposed rule as a final rule without 4. Section 252.251–7000 is amended as Use of Government Supply Sources change. follows: This rule was not subject to Office of ■ a. By revising the clause date to read AGENCY: Department of Defense (DoD). Management and Budget review under ‘‘(NOV 2004)’’; ACTION: Final rule. Executive Order 12866, dated ■ b. In paragraph (c)(4) by revising the September 30, 1993. second sentence; and SUMMARY: DoD has issued a final rule ■ B. Regulatory Flexibility Act c. In paragraph (c)(4) by adding a new amending the Defense Federal sentence after the second sentence. The Acquisition Regulation Supplement DoD certifies that this final rule will revised and added text reads as follows: (DFARS) to update text pertaining to not have a significant economic impact contractor use of Government supply on a substantial number of small entities 252.251–7000 Ordering from government sources. This rule is a result of a within the meaning of the Regulatory supply sources. transformation initiative undertaken by Flexibility Act, 5 U.S.C. 601, et seq., * * * * * DoD to dramatically change the purpose because the DFARS changes address (c) * * * and content of the DFARS. procedural matters that apply only (4) * * * For purchases made from DATES: Effective November 22, 2004. when a contractor is authorized to use DoD supply sources, this means within Government supply sources. 30 days of the date of a proper invoice. FOR FURTHER INFORMATION CONTACT: Mr. The Contractor shall annotate each Steven Cohen, Defense Acquisition C. Paperwork Reduction Act invoice with the date of receipt. * * * Regulations Council, OUSD (AT&L) The Paperwork Reduction Act does * * * * * DPAP (DAR), IMD 3C132, 3062 Defense not apply because the rule does not Pentagon, Washington, DC 20301–3062. impose any information collection [FR Doc. 04–25826 Filed 11–19–04; 8:45 am] Telephone (703) 602–0293; facsimile requirements that require the approval BILLING CODE 5001–08–P (703) 602–0350. Please cite DFARS Case of the Office of Management and Budget 2003–D045. under 44 U.S.C. 3501, et seq. SUPPLEMENTARY INFORMATION: List of Subjects in 48 CFR Parts 251 and DEPARTMENT OF TRANSPORTATION A. Background 252 Federal Railroad Administration DFARS Transformation is a major Government procurement. DoD initiative to dramatically change 49 CFR Parts 222 and 229 the purpose and content of the DFARS. Michele P. Peterson, The objective is to improve the Executive Editor, Defense Acquisition [Docket No. FRA–1999–6439, Notice No. 13] efficiency and effectiveness of the Regulations Council. acquisition process, while allowing the ■ Therefore, 48 CFR Parts 251 and 252 RIN 2130–AA71 acquisition workforce the flexibility to are amended as follows: ■ 1. The authority citation for 48 CFR Use of Locomotive Horns at Highway- innovate. The transformed DFARS will Rail Grade Crossings contain only requirements of law, DoD- Parts 251 and 252 continues to read as wide policies, delegations of FAR follows: AGENCY: Federal Railroad authorities, deviations from FAR Authority: 41 U.S.C. 421 and 48 CFR Administration (FRA), Department of requirements, and policies/procedures Chapter 1. Transportation (DOT).

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ACTION: Interim final rule; change of FOR FURTHER INFORMATION CONTACT: Ron In order to address the concerns of effective date. Ries, Office of Safety, FRA, 1120 communities that have been anxiously Vermont Avenue, NW., Washington, DC awaiting the issuance of the final rule, SUMMARY: On December 18, 2003, FRA 20590 (telephone (202) 493–6299); or the provisions of the final rule for quiet published an Interim Final Rule (IFR) in Kathryn Shelton, Office of Chief zone-related administrative matters will the Federal Register (68 FR 70586) Counsel, FRA, 1120 Vermont Avenue, become effective 30 days after addressing the use of locomotive horns NW., Washington, DC 20590 (telephone publication of the final rule. Therefore, at highway-rail grade crossings. As FRA (202) 493–6038). public authorities will be permitted to was interested in receiving public SUPPLEMENTARY INFORMATION: This submit quiet zone applications and/or comments on all aspects of the IFR, FRA document changes the IFR effective date notification packages 30 days after the held a public hearing in Washington, to April 1, 2005. Therefore, any final rule is published. However, the DC on February 4, 2004 and extended requirements imposed by the IFR that provisions of the final rule which the comment period from the originally pertain to 49 CFR parts 222 and 229 and require railroads to sound the scheduled deadline of February 17, would have taken effect before April 1, locomotive horn when approaching and 2004 to April 19, 2004. However, by the 2005 need not be complied with before entering public highway-rail grade close of the extended comment period, that date. This document does not, crossings will not take effect until April FRA had received more than 1,400 however, modify any IFR requirements 1, 2005. This delay should give comments on the IFR and that are scheduled to take effect on or communities additional time within Environmental Impact Statement. Given after April 1, 2005. which to come into compliance with the the extensive amount of time needed to As the provisions of the IFR remain requirements of the final rule before review and analyze the comments subject to further modification under routine locomotive horn sounding is received, FRA will be unable to issue a the terms of the final rule, FRA intends initiated at public grade crossings final rule before the IFR effective date of to issue the final rule prior to April 1, within the area. December 18, 2004. Therefore, FRA is 2005. Thus, this change of the IFR issuing this document to announce the Issued in Washington, DC, on November effective date will give public 17, 2004. change of the IFR effective date. authorities additional time within Betty Monro, DATES: The effective date of the IFR which to establish the necessary published at 68 FR 70856 is changed conditions that will permit them to Acting Administrator. from December 18, 2004 to April 1, continue or establish quiet zones within [FR Doc. 04–25900 Filed 11–19–04; 8:45 am] 2005. their respective jurisdictions. BILLING CODE 4910–06–U

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Proposed Rules Federal Register Vol. 69, No. 224

Monday, November 22, 2004

This section of the FEDERAL REGISTER Locust, Kansas City, Missouri, 816–329– detailed summary of the FAA’s contains notices to the public of the proposed 4135, fax 816–329–4090. development of diesel engine issuance of rules and regulations. The SUPPLEMENTARY INFORMATION: requirements, refer to this policy. purpose of these notices is to give interested The general areas of concern involved persons an opportunity to participate in the Comments Invited the power characteristics of the diesel rule making prior to the adoption of the final engines, the use of turbine fuel in an rules. Interested persons are invited to participate in the making of these airplane class that has typically been proposed special conditions by powered by gasoline fueled engines, the DEPARTMENT OF TRANSPORTATION submitting such written data, views, or vibration characteristics and failure arguments, as they may desire. modes of diesel engines. These concerns Federal Aviation Administration Communications should identify the were identified after review of the regulatory docket or notice number and historical record of diesel engine use in 14 CFR Part 23 be submitted in duplicate to the address aircraft and a review of the 14 CFR part specified above. All communications 23 regulations, which identified specific [Docket No. CE214; Notice No. 23–04–02– regulatory areas that needed to be SC] received on or before the closing date for comments will be considered by the elevated for applicability to diesel Special Conditions: Thielert Aircraft Administrator. The proposals described engine installations. These concerns are Engines GmbH, Cessna Model 172 in this notice may be changed in light not considered universally aplicable to Series; Diesel Cycle Engine Using of the comments received. All all types of possible diesel engines and Turbine (Jet) Fuel comments received will be available in diesel engine installations. However, the Rules Docket for examination by after review of the Thielert installation, AGENCY: Federal Aviation interested persons, both before and after the Thielert engine type, and the Administration (FAA), DOT. the closing date for comments. A report requirements applied by the Lufthart ACTION: Notice of proposed special summarizing each substantive public Bundesamt, and applying the provisions conditions. contact with FAA personnel concerning of the diesel policy, the FAA proposed this rulemaking will be filed in the these fuel system and engine related SUMMARY: This proposes special special conditions. Other special conditions for the Cessna 172 series docket. Persons wishing the FAA to acknowledge receipt of their comments conditions issued in a separate notice airplane. This airplane, as modified by included special conditions for HIRF submitted in response to this notice Thielert Aircraft Engines GmbH, will and application of § 23.1309 provisions must include with those comments a have a novel or unusual design to the Full Authority Digital Engine self-addressed, stamped postcard on feature(s) associated with the Control (FADEC). installation of a diesel cycle engine which the following statement is made: utilizing turbine (jet) fuel. The ‘‘Comments to CE214.’’ The postcard Type Certification Basis applicable airworthiness regulations do will be date stamped and returned to the Under the provisions of § 21.101, not contain adequate or appropriate commenter. Thielert Aircraft Engines GmbH must safety standards for installation of this Background show that the Cessna Model 172, as new technology engine. These proposed changed, continues to meet the On February 11, 2002, Thielert special conditions contain the applicable provisions of the regulations Aircraft Engines GmbH, of Lichtenstein, additional safety standards that the incorporated by reference in Type Germany applied for a supplemental Administrator considers necessary to Certificate No. 3A13 or the applicable type certificate to install a diesel cycle establish a level of safety equivalent to regulations in effect on the date of engine utilizing turbine (jet) fuel in the that established by the exiting application for the change. The Cessna Model 172. The Cessna Model airworthiness standards. regulations incorporated by reference in 172, currently approved under Type the type certificate are commonly DATES: Comments must be received on Certificate No. 3A12 is a four-place, or before December 22, 2004. referred to as the ‘‘original type high wing, fixed tricycle landing gear, certification basis.’’ The regulations ADDRESSES: Comments on this proposal conventional planform airplane. The incorporated by reference in Type may be mailed in duplicate to: Federal Cessna 172 airplanes to be modified Certificate No. 3A13 are as follows: Aviation Administration, Regional have gross weights in the range of 2300 The certification basis of models Counsel, ACE–7, Attention: Rules to 2558 pounds in the normal category. 172K, 172L, 172M, 172N, and 172P is: Docket, Docket No. CE214, 901 Locust, The affected series of airplanes have Part 3 of the Civil Air Regulations Room 506, Kansas City, Missouri 64106, been equipped with various gasoline effective November 1, 1949, as amended or delivered in duplicate to the Regional reciprocating engines of 160 to 180 by 3–1 through 3–12. In addition, Counsel at the above address. horsepower. effective S/N 17271035 and on, 14 CFR Comments must be marked: CE214. In anticipation of the reintroduction part 23, § 23.1559, effective March 1, Comments may be inspected in the of diesel engine technology into the 1978. 14 CFR part 36, dated December Rules Docket weekdays, except Federal small airplane fleet, the FAA issued 1, 1969, plus Amendments 36–1 holidays, between 7:30 a.m. and 4 p.m. Policy Statement PS–ACE100–2002–004 through 36–5 for Model 172N; 14 CFR FOR FURTHER INFORMATION CONTACT: Pete on May 15, 2003, which identified areas part 36, dated December 1, 1969, plus Rouse, Federal Aviation Administration, of technological concern involving Amendments 36–1 through 36–12 for Aircraft Certification Service, Small introduction of new technology diesel Model 172P through 172Q. In addition, Airplane Directorate, ACE–111, 901 engines into small airplanes. For a more effective S/N 17276260 and on, 14 CFR

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part 23, § 23.1545(a), Amendment 23– 14 CFR part 23, §§ 23.423; 23.611; 23.623; 23.625; 23.627; 23.629; (at 23, dated December 1, 1978, including: 23.619; 23.623; 23.689; 23.775; 23.871; Amendment 23–6 for Cessna 172 Equivalent Safety Items for: 23.1323; and 23.1563, as amended by models R and S; Civil Aviation Airspeed Indicator—CAR 3.757 Amendment 23–7. 14 CFR part 23, Regulation 3.159 applies to all other Operating Limitations—CAR 3.778(a) §§ 23.807 and 23.1524, as amended by models); 23.773; 23.777; 23.777(d); Amendment 23–10. 14 CFR part 23, 23.779; 23.779(d); 23.781; 23.831; The certification basis for the model §§ 23.507; 23.771; 23.853(a), (b) and (c); 23.863; 23.865; 23.867; 23.901; 172R is: and 23.1365, as amended by 23.901(d)(1); 23.903; 23.905; 23.907; Part 23 of the Federal Aviation Amendment 23–14. 14 CFR part 23, 23.909; 23.925; 23.929; 23.939; 23.943; Regulations effective February 1, 1965, § 23.951, as amended by Amendment 23.951; 23.951(c); 23.954; 23.955; as amended by 23–1 through 23–6, 23–15. 14 CFR part 23, §§ 23.607; 23.959; 23.961; 23.963; 23.965; 23.967; eccept as follows: 23.675; 23.685; 23.733; 23.787; 23.1309 23.969; 23.971; 23.973; 23.973(f); 14 CFR part 23, §§ 23.423; 23.611; and 23.1322, as amended by 23.975; 23.977; 23.991; 23.993; 23.994; 23.619; 23.623; 23.689; 23.775; 23.871; Amendment 23–17. 14 CFR part 23, 23.995; 23.997; 23.997(a)(2), in place of 23.1323; and 23.1563, as amended by § 23.1301, as amended by Amendment §§ 23.997(a)(1); 23.999; 23.1011; Amendment 23–7. 14 CFR part 23, 23–20. 14 CFR part 23, §§ 23.1353 and 23.1013; 23.1015; 23.1017; 23.1019; §§ 23.807 and 23.1524, as amended by 23.1559, as amended by Amendment 23.1021; 23.1023; 23.1041; 23.1043; Amendment 23–10. 14 CFR part 23, 23–21. 14 CFR part 23, §§ 23.603; 23.1047; 23.1061; 23.1063; 23.1091; §§ 23.507; 23.771; 23.853(a), (b) and (c); 23.605; 23.613; 23.1329 and 23.1545, as 23.1093; 23.1103; 23.1107; 23.1121; and 23.1365, as amended by amended by Amendment 23–23. 14 CFR 23.1123; 23.1141; 23.1143; 23.1145; Amendment 23–14. 14 CFR part 23, part 23, §§ 23.441 and 23.1549, as 23.1163; 23.1165; 23.1181; 23.1182; § 23.951, as amended by Amendment amended by Amendment 23–28. 14 CFR 23.1183; 23.1191; 23.1193; 23.1301; 23–15. 14 CFR part 23, §§ 23.607; part 23, §§ 23.779 and 23.781, as 23.1305; 23.1309; 23.1311; 23.1321; 23.675; 23.685; 23.733; 23.787; 23.1309 amended by Amendment 23–33. 14 CFR 23.1322; 23.1327; 23.1331; 23.1337; and 23.1322, as amended by part §§ 23.1; 23.51 and 23.561, as 23.1351; 23.1353; 23.1357; 23.1359; Amendment 23–17. 14 CFR part 23, amended by Amendment 23–34. 14 CFR 23.1361; 23.1365; 23.1367; 23.1381; § 23.1301, as amended by Amendment part 23, §§ 23.301; 23.331; 23.351; 23.1431; 23.1461; 23.1501; 23.1519; 23–20. 14 CFR part 23, §§ 23.1353; and 23.427; 23.677; 23.701; 23.735; and 23.1521; 23.1527; 23.1529; 23.1541; 23.1559, as amended by Amendment 23.831, as amended by Amendment 23– 23.1543; 23.1549; 23.1551; 23.1555; 23–21. 14 CFR part 23, §§ 23.603; 42. 14 CFR part 23, §§ 23.961; 23.1093; 23.1557; 23.1567; 23.1581; 23.1583; 23.605; 23.613; 23.1329 and 23.1545, as 23.1143(g); 23.1147(b); 23.1303; 23.1585; 23.1587; and 23.1589. amended by Amendment 23–23. 14 CFR 23.1357; 23.1361 and 23.1385, as part 23, §§ 23.441 and 23.1549, as Equivalent levels of safety for: amended by Amendment 23–43. 14 CFR Cockpit controls—23.777(d) amended by Amendment 23–28. 14 CFR part 23, §§ 23.562(a); 23.562(b)2; Motion and effect of cockpit part 23, §§ 23.779 and 23.781, as 23.562(c)1; 23.562(c)2; 23.562(c)3; and controls—23.779(b) amended by Amendment 23–33. 14 CFR 23.562(c)4, as amended by Amendment Liquid Cooling—23.1061 part 23, §§ 23.1; 23.51 and 23.561, as 23–42. 14 CFR part 23, §§ 23.961; Ignition switches—23.1145 amended by Amendment 23–34. 14 CFR 23.1093; 23.1143(g); 23.1147(b); part 23, §§ 23.301; 23.331; 23.351; The type certification basis includes 23.1303; 23.1357; 23.1361 and 23.1385, exemption, if any; equivalent level of 23.427; 23.677; 23.701; 23.735; and as amended by Amendment 23–43. 14 23.831, as amended by Amendment 23– safety findings, if any; and the special CFR part 23, §§ 23.562(a); 23.562(b)2; conditions adopted by this rulemaking 42. 14 CFR part 23, §§ 23.961; 23.1093; 23.562(c)1; 23.562(c)2; 23.562(c)3; and 23.1143(g); 23.1147(b); 23.1303; action. 23.562(c)4, as amended by Amendment In addition, if the regulations 23.1357; 23.1361 and 23.1385, as 23–44. 14 CFR part 23, §§ 23.33; 23.53; amended by Amendment 23–43. 14 CFR incorporated by reference do not 23.305; 23.321; 23.485; 23.621; 23.655 provide adequate standards with respect part 23.562(a), 23.562(b)2, 23.562(c)1, and 23.731, as amended by Amendment 23.562(c)2, 23.562(c)3, and 23.562(c)4, to the change, the applicant must 23–45. comply with certain regulations in effect as amended by Amendment 23–44. 14 14 CFR part 36, dated December 1, CFR part 23, §§ 23.33; 23.53; 23.305; on the date of application for the 1969, as amended by Amendments 36– change. The type certification basis for 23.321; 23.485; 23.621; 23.655 and 1 through 36–21. 23.731, as amended by Amendment 23– the modified airplanes is as stated Equivalent Safety Items for: 45; and 14 CFR part 36, dated December previously with the following Induction System Icing Protection— 1, 1969, as amended by Amendments modifications: 14 CFR 23.1093 36–1 through 36–21. If the Administrator finds that the Throttle Control—14 CFR 23.1143(g) applicable airworthiness regulations Equivalent Safety Items for: Mixture Control—14 CFR 23.1147(b) (i.e., part 23) do not contain adequate or Induction System Icing Protection— 14 CFR part 23, at Amendment level appropriate safety standards for the 14 CFR 23.1093 23–51, applicable to the areas of change: Cessna Model 172 because of a novel or Throttle Control—14 CFR 23.1143(g) 14 CFR part 23, §§ 23.1; 23.3; 23.21; unusual design feature, special Mixture Control—14 CFR 23.1147(b) 23.23; 23.25; 23.29; 23.33; 23.45; 23.49; conditions are prescribed under the The type certification basis for the 23.51; 23.53; 23.63; 23.65; 23.69; 23.71; provisions of § 21.16. modified airplanes is as stated 23.73; 23.77; 23.141; 23.143; 23.145; In addition to the applicable previously with the following 23.151; 23.153; 23.155; 23.171; 23.173; airworthiness regulations and special modifications: The certification basis for 23.175; 23.177; 23.201; 23.221; 23.231; conditions, the Cessna Model 172 must the model 172S is: 23.251; 23.301; 23.303; 23.305; 23.307; comply with the part 23 noise Part 23 of the Federal Aviation 23.321; 23.335; 23.337; 23.341; 23.343; certification requirements of 14 CFR Regulations effective February 1, 1965, 23.361; 23.363; 23.371; 23.572; 23.573; part 36. as amended by 23–1 through 23–6, 23.574; 23.601; 23.603; 23.605; 23.607; Special conditions, as appropriate, as except as follows: 23.609; 23.611; 23.613; 23.619; 23.621; defined in § 11.19, are issued in

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accordance with § 11.38, and become engine powered airplane. The general Due to the use of turbine fuel, the part of the type certification basis in concerns associated with the Thielert applicant must comply with accordance with § 21.101. modification are as follows: § 23.1557(c)(1)(ii). Section Special conditions are initially Installation and Vibration Requirements 23.1557(c)(1)(ii) will not apply. applicable to the model for which they Fuel and Fuel System Related ‘‘Turbine engine’’ is interpreted to mean are issued. Should the applicant apply Requirements ‘‘aircraft diesel engine’’ for this for a supplemental type certificate to FADEC and Electrical System requirement. modify any other model included on the Requirements FADEC and Electrical System same type certificate to incorporate the Limitations and Indications Requirements: The electrical system same novel or unusual design feature, Installation and Vibration must comply with the following: the special conditions would also apply Requirements: These special conditions • In case of failure of one power to the other model under the provisions include requirements similar to the supply of the electrical system, there of § 21.101. requirements of § 23.901(d)(1) for will be no significant engine power turbine engines. In addition to the change. The electrical power supply to Novel or Unusual Design Features requirements of § 23.901 applied to the FADEC must remain stable in such The Cessna Model 172 will reciprocating engines, the applicant will a failure. incorporate the following novel or be required to construct and arrange • The transition from the actual unusual design features: The Cessna each diesel engine installation to result engine net (FADEC) to the remaining Model 172, as modified by Thielert in vibration characteristics that do not electrical system with the consumer’s Aircraft Engines GmbH, will incorporate exceed those established during the type avionics, communication etc. should be an aircraft diesel engine utilizing certification of the engine; and do not made by a single point only. If several turbine (jet) fuel. exceed vibration characteristics that a transitions (e.g., for redundancy previously certificated airframe reasons) are needed, then the number of Applicability structure has been approved for, unless the transitions must be kept as small as As dicussed above, these special such vibration characteristics are shown possible. conditions are applicable to the Cessna to have no effect on safety or continued • There must be the ability to Model 172. Should Thielert Aircraft airworthiness. The engine limit torque separate the FADEC power supply Engines GmbH apply at a later date for design requirements as specified in (alternator) from the battery and from a supplemental type certificate to § 23.361 are also modified. the remaining electrical system. modify any other model included on An additional requirement to consider • In case of loss of alternator power Type Certificate No. 3A13 to incorporate vibration levels and/or effects of an the installation must guarantee that the the same novel or unusual design inoperative cylinder was imposed. Also, battery will provide the power for an feature, the special conditions would a requirement to evaluate the engine appropriate time after appropriate apply to that model as well under the design for the possibility of, or effect of, warning to the pilot. provisions of § 21.101. liberating high-energy engine fragments, • FADEC, alternator and battery must in the event of a catastrophic engine be interconnected in an appropriate Conclusion failure, was added. way, so that in case of loss of battery This action affects only certain novel Fuel and Fuel System Related power, the supply of the FADEC is or unusual design features on one model Requirements: Due to the use of turbine guaranteed by the alternator. series of airplane. It is not a rule of fuel, this airplane must comply with the Limitations and Indications: Section general applicability, and it affects only requirements in § 23.951(c). 23.1305(a) and § 23.1305(b)(2) will the applicant who applied to the FAA Section 23.961 will be complied with apply, except that propeller revolutions for approval of these features on the using the turbine fuel requirements. per minute (RPM) will be displayed. airplane. These requirements will be Sections 23.1305(b)(4), 23.1305(b)(5) substantiated by flight-testing as List of Subjects in 14 CFR Part 23 and 23.1305(b)(7) are deleted. described in Advisory Circular AC 23– Additional critical engine parameters Aircraft, Aviation safety, Signs and 8B, Flight Test Guide for Certification of for this installation that will be symbols. Part 23 Airplanes. displayed include the following: Citation This special condition specifically (1) Power setting, in percentage, and requires testing to show compliance to (2) Fuel temperature. The authority citation for these § 23.961 and adds the possibility of Due to the use of turbine fuel, the special conditions is as follows: testing non-aviation diesel fuels. requirements for § 23.1521(d), as Authority: 49 U.S.C. 106(g), 40113 and To ensure fuel system compatability applicable to fuel designation for 44701; 14 CFR 21.16 and 21.101; and 14 CFR and reduce the possibility of misfueling, turbine engines, will apply. 11.38 and 11.19. and discounting the first clause of § 23.973(f) referring to turbine engines, The Proposed Special Conditions Discussion the applicant will comply with Accordingly, the Federal Aviation The major concerns identified in the § 23.973(f). Administration (FAA) proposes the development of FAA policy deal with Due to the use of turbine fuel, the following special conditions as part of the installation of the diesel engine and applicant will comply with the type certification basis for Cessna its vibration levels under normal § 23.977(a)(2), and § 23.977(a)(1) will Model 172 airplanes modified by operating conditions and with one not apply. ‘‘Turbine engines’’ will be Thielert Aircraft Engines GmbH. cylinder inoperative, the interpreted to mean ‘‘aircraft diesel accommodation of turbine fuels in engine’’ for this requirement. An 1. Engine Torque (Provisions Similar to airplane systems that have generally additional requirement to consider the § 23.361, Paragraphs (b)(1) and (c)(3)) evolved based on gasoline requirements, possibility of fuel freezing was imposed. (a) For diesel engine installations, the the anticipated use of a FADEC to Due to the use of turbine fuel, the engine mounts and supporting structure control the engine, and the appropriate applicant will comply with must be designed to withstand the limitations and indications for a diesel § 23.1305(c)(8). following:

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(1) A limit engine torque load critical condition for icing likely to be 7. Powerplant—Powerplant Controls imposed by sudden engine stoppage due encountered in operation. and Accessories—Engine Ignition to malfunction or structural failure. Methods of compliance that are Systems (Compliance With § 23.1165 The effects of sudden engine stoppage acceptable for turbine engine fuel Requirements) may alternately be mitigated to an systems requirements of § 23.951(c) are Considering that the FADEC provides acceptable level by utilization of also considered acceptable for this the same function as an ignition system isolators, dampers clutches and similar requirement. for this diesel engine, in place of provisions, so that unacceptable load compliance to § 23.1165, the applicant levels are not imposed on the previously 4. Powerplant—Fuel System—Fuel will comply with the following: certificated structure. System Hot Weather Operation The electrical system must comply (b) The limit engine torque to be (Compliance With § 23.961 with the following requirements: considered under paragraph 14 CFR part Requirements) (a) In case of failure of one power 23, § 23.361(a) must be obtained by supply of the electrical system, there In place of compliance with § 23.961, multiplying the mean torque by a factor will be no significant engine power the applicant must comply with the of four for diesel cycle engines. changes. The electrical power supply to (1) If a factor of less than four is following: the FADEC must remain stable in such utilized, it must be shown that the limit Each fuel system must be free from a failure. torque imposed on the engine mount is vapor lock when using fuel at its critical (b) The transition from the actual consistent with the provisions of temperature, with respect to vapor engine electrical network (FADEC § 23.361(c), that is, it must be shown formation, when operating the airplane network) to the remaining electrical that the utilization of the factors listed in all critical operating and system should be made at a single point in § 23.361(c)(3) will result in limit environmental conditions for which only. If several transitions (for example, torques being imposed on the mount approval is requested. For turbine fuel, redundancy reasons) are needed, then that are equivalent or less than those or for aircraft equipped with diesel the number of the transitions must be imposed by a conventional gasoline cycle engines that use turbine or diesel kept as small as possible. reciprocating engine. type fuels, the initial temperature must (c) There must be the ability to 2. Powerplant—Installation (Provisions be 110 °F, ¥0°, +5° or the maximum separate the FADEC power supply Similar to § 23.901(d)(1) for Turbine outside air temperature for which (alternator) from the battery and from Engines) approval is requested, whichever is the remaining electrical system. more critical. (d) In case of loss of alternator power Considering the vibration the installation must guarantee that the characteristics of diesel engines, the The fuel system must be in an battery will provide the power for an applicant must comply with the operational configuration that will yield appropriate time after appropriate following: the most adverse, that is, conservative warning to the pilot. This period must (a) Each diesel engine installation results. be at least 120 minutes. must be constructed and arranged to To comply with this requirement, the (e) FADEC, alternator and battery result in vibration characteristics that— applicant must use the turbine fuel must be interconnected in an (1) Do not exceed those established requirements and must substantiate appropriate way, so that in case of loss during the type certification of the these by flight-testing, as described in of battery power, the supply of the engine; and Advisory Circular AC 23–8B, Flight Test FADEC is guaranteed by the alternator. (2) Do not exceed vibration Guide for Certification of Part 23 8. Equipment—General—Powerplant characteristics that a previously Airplanes. certificated airframe structure has been Instruments (Compliance With approved for— 5. Powerplant—Fuel System—Fuel Tank § 23.1305 Requirements) (i) Unless such vibration Filler Connection (Compliance With In place of compliance with characteristics are shown to have no § 23.973(f) Requirements) § 23.1305, the applicant will comply effect on safety or continued with the following: The following are airworthiness, or In place for compliance with required powerplant instruments: (ii) Unless mitigated to an acceptable § 23.973(e) and (f), the applicant must (a) A fuel quantity indicator for each level by utilization of isolators, dampers comply with the following: fuel tank, installed in accordance with clutches and similar provisions, so that For airplanes that operate on turbine § 23.1337(b). unacceptable vibration levels are not or diesel type fuels, the inside diameter (b) An oil pressure indicator. imposed on the previously certificated of the fuel filler opening must be no (c) An oil temperature indicator. structure. smaller than 2.95 inches. (d) A tachometer indicating propeller speed. 3. Powerplant—Fuel System—Fuel 6. Powerplant—Fuel System—Fuel Tank (d) A coolant temperature indicator. System With Water Saturated Fuel Outlet (Compliance With § 23.977 (f) An indicating means for the fuel (Compliance With § 23.951 Requirements) strainer or filter required by § 23.997 to requirements) indicate the occurrence of In place of compliance with Considering the fuel types used by contamination of the strainer or filter diesel engines, the applicant must § 23.977(a)(1) and (a)(2), the applicant before it reaches the capacity comply with the following: will comply with the following: established in accordance with Each fuel system for a diesel engine There must be a fuel strainer for the § 23.997(d). must be capable of sustained operation fuel tank outlet or for the booster pump. Alternately, no indicator is required if throughout its flow and pressure range This strainer must, for diesel engine the engine can operate normally for a with fuel initially saturated with water powered airplanes, prevent the passage specified period with the fuel strainer at 80 °F and having 0.75cc of free water of any object that could restrict fuel flow exposed to the maximum fuel per gallon added and cooled to the most or damage any fuel system component. contamination as specified in MIL–

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5007D and provisions for replacing the takeoff temperature established in (1) (3) It must be shown that all possible fuel filter at this specified period (or a above). liberated engine parts or components do shorter period) are included in the not have adequate energy to penetrate 12. Powerplant Installation—Vibration maintenance scheduled for the engine engine cowlings; or Levels installation. (4) Assuming infinite fragment (g) Power setting, in percentage. Vibration levels throughout the energy, and analyzing the trajectory of (h) Fuel temperature. engine operating range must be the probable fragments and components, (i) Fuel flow (engine fuel evaluated and: any hazard due to liberated engine parts consumption). (1) Vibration levels imposed on the or components will be minimized and the possibility of crew injury is 9. Operating Limitations and airframe must be less than or equivalent eliminated. Minimization must be Information—Powerplant Limitations— to those of the gasoline engine; or considered during initial design and not Fuel Grade or Designation (Compliance (2) Any vibration level that is higher presented as an analysis after design With § 23.1521(d) Requirements) than that imposed on the airframe by the replaced gasoline engine must be completion. Instead of compliance with considered in the modification and the Issued in Kansas City, Missouri, on § 23.1521(d), the applicant must comply effects on the technical areas covered by November 1, 2004. with the following: the following paragraphs must be James E. Jackson, The minimum fuel designation (for investigated: 14 CFR part 23, §§ 23.251; diesel engines) must be established so Acting Manager, Small Airplane Directorate, 23.613; 23.627; 23.629 (or CAR 3.159, as Aircraft Certification Service. that it is not less than that required for applicable to various models); 23.572; the operation of the engines within the [FR Doc. 04–25697 Filed 11–19–04; 8:45 am] 23.573; 23.574 and 23.901. BILLING CODE 4910–13–M limitations in paragraphs (b) and (c) of Vibration levels imposed on the § 23.1521. airframe can be mitigated to an 10. Markings and Placards— acceptable level by utilization of DEPARTMENT OF TRANSPORTATION Miscellaneous Markings and Placards— isolators, dampers clutches and similar Fuel, Oil, and Coolant Filler Openings provisions, so that unacceptable Federal Aviation Administration (Compliance With § 23.1557(c)(1) vibration levels are not imposed on the Requirements) previously certificated structure. 14 CFR Part 39 Instead of compliance with 13. Powerful Installation—One Cylinder [Docket No. FAA–2004–19444; Directorate § 23.1557(c)(1), the applicant must Inoperative Identifier 2004–CE–33–AD] comply with the following: It must be shown by test or analysis, RIN 2120–AA64 Fuel filler openings must be marked or by a combination of methods, that the at or near the filler cover with— Airworthiness Directives; Pacific airframe can withstand the shaking or For diesel engine-powered Aerospace Corporation, Ltd. Model vibratory forces imposed by the engine airplanes— 750XL Airplanes (a) The words ‘‘Jet Fuel’’; and if a cylinder becomes inoperative. Diesel (b) The permissible fuel designations, engines of conventional design typically AGENCY: Federal Aviation or references to the Airplane Flight have extremely high levels of vibration Administration (FAA), DOT. Manual (AFM) for permissible fuel when a cylinder become inoperative. ACTION: Notice of proposed rulemaking designations. Data must be provided to the airframe (NPRM). (c) A warning placard or note that installer/modifier so either appropriate SUMMARY: The FAA proposes to adopt a states the following or similar: design considerations or operating ‘‘Warning—this airplane equipped procedures, or both, can be developed to new airworthiness directive (AD) for all with an aircraft diesel engine, service prevent airframe and propeller damage. Pacific Aerospace Corporation, Ltd. with approved fuels only.’’ (Pacific Aerospace) Model 750XL 14. Powerplant Installation—High airplanes. This proposed AD would The colors of this warning placard Energy Engine Fragments should be black and white. require you to replace any type TLP–D It may be possible for diesel engine or TLED rivets on the aileron pushrod 11. Powerplant—Fuel System—Fuel- cylinders (or portions thereof) to fail ends and elevator control pushrod ends. Freezing and physically separate from the engine This proposed AD results from If the fuel in the tanks cannot be at high velocity (due to the high internal mandatory continuing airworthiness shown to flow suitably under all pressures). This failure mode will be information (MCAI) issued by the possible temperature conditions, then considered possible in engine designs airworthiness authority for New fuel temperature limitations are with removable cylinders or other non- Zealand. We are issuing this proposed required. These will be considered as integral block designs. The following is AD to replace the above identified rivets part of the essential operating required. on the aileron pushrod ends and parameters for the aircraft and must be (1) It must be shown that the engine elevator control pushrod ends, which, if limitations. construction type (massive or integral not replaced, could result in loose (1) The takeoff temperature limitation block with nonremovable cylinders) is mechanical elements in the control must be determined by testing or inherently resistant to liberating high systems. This could lead to control analysis to define the minimum cold- energy fragments in the event of a anomalies and loss of airplane control. soaked temperature of the fuel that the catastrophic engine failure; or, DATES: We must receive any comments airplane can operate on. (2) It must be shown by the design of on this proposed AD by December 27, (2) The minimum operating the engine, that engine cylinders, other 2004. temperature limitation must be engine components or portions thereof ADDRESSES: Use one of the following to determined by testing to define the (fragments) cannot be shed or blown off submit comments on this proposed AD: minimum operating temperature of the engine in the event of a • DOT Docket Web site: Go to acceptable after takeoff (with minimum catastrophic engine failure; or http://dms.dot.gov and follow the

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instructions for sending your comments environmental, and energy aspects of 2 or 3243–4–2 (oversize nominal 1⁄8- electronically. this proposed AD. If you contact us inch) rivets. • Government-wide rulemaking Web through a nonwritten communication What action did the CAA take? The site: Go to http://www.regulations.gov and that contact relates to a substantive CAA classified this service bulletin as and follow the instructions for sending part of this proposed AD, we will mandatory and issued New Zealand AD your comments electronically. summarize the contact and place the Number DCA/40XL/1, dated June 24, • Mail: Docket Management Facility; summary in the docket. We will 2004, to ensure the continued U.S. Department of Transportation, 400 consider all comments received by the airworthiness of these airplanes in New Seventh Street, SW., Nassif Building, closing date and may amend this Zealand. Room PL–401, Washington, DC 20590. proposed AD in light of those comments Did the CAA inform the United States • Fax: 1–202–493–2251. and contacts. under the bilateral airworthiness • Hand Delivery: Room PL–401 on Docket Information agreement? These Pacific Aerospace the plaza level of the Nassif Building, Model 750XL airplanes are 400 Seventh Street, SW., Washington, Where can I go to view the docket manufactured in New Zealand and are DC, between 9 a.m. and 5 p.m., Monday information? You may view the AD type-certificated for operation in the through Friday, except Federal holidays. docket that contains the proposal, any United States under the provisions of To get the service information comments received, and any final section 21.29 of the Federal Aviation identified in this proposed AD, contact disposition in person at the DMS Docket Regulations (14 CFR 21.29) and the Pacific Aerospace Corporation, Ltd., Offices between 9 a.m. and 5 p.m. applicable bilateral airworthiness Hamilton Airport, Private Bag HN 3027, (eastern standard time), Monday agreement. Hamilton, New Zealand; telephone: 64 7 through Friday, except Federal holidays. Under this bilateral airworthiness 843 6144; facsimile: 64 7 843 6134. The Docket Office (telephone 1–800– agreement, the CAA has kept us To view the comments to this 647–5227) is located on the plaza level informed of the situation described proposed AD, go to http://dms.dot.gov. of the Department of Transportation above. This is docket number FAA–2004– NASSIF Building at the street address FAA’s Determination and Requirements 19444. stated in ADDRESSES. You may also view the AD docket on the Internet at of This Proposed AD FOR FURTHER INFORMATION CONTACT: Karl http://dms.dot.gov. The comments will What has FAA decided? We have Schletzbaum, Aerospace Engineer, be available in the AD docket shortly examined the CAA’s findings, reviewed Small Airplane Directorate, 901 Locust, after the DMS receives them. all available information, and Room 302, Kansas City, MO 64106; Discussion determined that AD action is necessary telephone: (816) 329–4146; facsimile: for products of this type design that are (816) 329–4090. What events have caused this certificated for operation in the United SUPPLEMENTARY INFORMATION: proposed AD? The Civil Aviation States. Authority (CAA), which is the Comments Invited Since the unsafe condition described airworthiness authority for New previously is likely to exist or develop How do I comment on this proposed Zealand, recently notified FAA that an on other Pacific Aerospace Model AD? We invite you to submit any unsafe condition may exist on all Pacific 750XL airplanes of the same type design written relevant data, views, or Aerospace Corporation, Ltd. (Pacific that are registered in the United States, arguments regarding this proposal. Send Aerospace) Model 750XL airplanes. The we are proposing AD action to replace your comments to an address listed CAA reports occurrences of loose type any type TLP–D or TLED rivets on the under ADDRESSES. Include the docket TLP–D or TLED rivets on the aileron aileron pushrod ends and elevator number, ‘‘FAA–2004–19444; Directorate pushrod ends and elevator control control pushrod ends, which, if not Identifier 2004–CE–33–AD’’ at the pushrod ends on Model 750XL replaced, could result in loose beginning of your comments. We will airplanes in service in New Zealand. mechanical elements in the control post all comments we receive, without What is the potential impact if FAA systems. This could lead to control change, to http://dms.dot.gov, including took no action? Any type TLP–D or anomalies and loss of airplane control. any personal information you provide. TLED rivets on the aileron pushrod ends What would this proposed AD We will also post a report summarizing and elevator control pushrod ends could require? This proposed AD would each substantive verbal contact with result in loose mechanical elements in require you to replace any type TLP–D FAA personnel concerning this the control systems. This could lead to or TLED rivets on the aileron pushrod proposed rulemaking. Using the search control anomalies and loss of airplane ends and elevator control pushrod ends. function of our docket Web site, anyone control. How does the revision to 14 CFR part can find and read the comments Is there service information that 39 affect this proposed AD? On July 10, received into any of our dockets, applies to this subject? Pacific 2002, we published a new version of 14 including the name of the individual Aerospace has issued Mandatory CFR part 39 (67 FR 47997, July 22, who sent the comment (or signed the Service Bulletin No. PACSB/XL/007, 2002), which governs FAA’s AD system. comment on behalf of an association, dated June 22, 2004. This regulation now includes material business, labor union, etc.). This is What are the provisions of this service that relates to altered products, special docket number FAA–2004–19444. You information? The service bulletin flight permits, and alternative methods may review the DOT’s complete Privacy includes procedures for: of compliance. This material previously Act Statement in the Federal Register —Inspecting for any type TLP–D or was included in each individual AD. published on April 11, 2000 (65 FR TLED rivets on the aileron pushrod Since this material is included in 14 19477–78) or you may visit http:// ends and elevator control pushrod CFR part 39, we will not include it in dms.dot.gov. ends; and future AD actions. Are there any specific portions of this —Replacing any type TLP–D or TLED proposed AD I should pay attention to? rivets found on the aileron pushrod Costs of Compliance We specifically invite comments on the ends and elevator control pushrod How many airplanes would this overall regulatory, economic, ends with new Cherry Max 3213–4– proposed AD impact? We estimate that

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this proposed AD affects 6 airplanes in affected airplanes? We estimate the rivets on the aileron pushrod ends and the U.S. registry. following costs to do this proposed elevator control pushrod ends: What would be the cost impact of this replacement of any type TLP–D or TLED proposed AD on owners/operators of the

Total cost per Labor cost Parts cost airplane Total cost on U.S. Operators

6 workhours × $65 per hour = $390 ...... $37 for 100 Cherry Max 3213–4–2 or $427 $427 × 6 = $3,562. 3243–4–2 (oversize nominal 1⁄8-inch) rivets.

The Cherry Max 3213–4–2 or 3243–4– ADDRESSES. Include ‘‘AD Docket FAA– § 39.13 [Amended] 2 rivets are available in a specially 2004–19444; Directorate Identifier 2. The FAA amends § 39.13 by adding sealed 100-count package. The costs 2004–CE–33–AD’’ in your request. the following new airworthiness This proposed rulemaking is above cover this 100-count package directive (AD): although you may need less than 100 promulgated under the authority in rivets. Subtitle VII, Part A, Subpart III, Section Pacific Aerospace Corporation, Ltd.: Docket 44701, General requirements. Under No. FAA–2004–19444; Directorate Regulatory Findings that section, the FAA is charged with Identifier 2004–CE–33–AD Would this proposed AD impact prescribing minimum standards When Is the Last Date I can Submit various entities? We have determined required in the interest of safety for the Comments on This Proposed AD? that this proposed AD would not have design of aircraft. This proposed federalism implications under Executive (a) We must receive comments on This regulation is within the scope of that proposed airworthiness directive (AD) by Order 13132. This proposed AD would authority since it corrects an unsafe December 27, 2004. not have a substantial direct effect on condition in the design of the aircraft the States, on the relationship between caused by type TLP–D or TLED rivets, What Other ADs are Affected by This Action? the national Government and the States, which, if not replaced, could result in (b) None. or on the distribution of power and loose mechanical elements in the What Airplanes are Affected by This AD? responsibilities among the various control systems. This could lead to levels of government. control anomalies and loss of airplane (c) This AD affects Model 750XL airplanes, Would this proposed AD involve a control. all serial numbers, that are certificated in any significant rule or regulatory action? For category. List of Subjects in 14 CFR Part 39 the reasons discussed above, I certify What Is the Unsafe Condition Presented in that this proposed AD: Air transportation, Aircraft, Aviation This AD? 1. Is not a ‘‘significant regulatory safety, Safety. action’’ under Executive Order 12866; (d) This AD is the result of mandatory 2. Is not a ‘‘significant rule’’ under the The Proposed Amendment continuing airworthiness information (MCAI) DOT Regulatory Policies and Procedures issued by the airworthiness authority for Accordingly, under the authority New Zealand. The actions specified in this (44 FR 11034, February 26, 1979); and delegated to me by the Administrator, 3. Will not have a significant AD are intended to replace any type TLP–D the Federal Aviation Administration or TLED rivets on the aileron pushrod ends economic impact, positive or negative, proposes to amend 14 CFR part 39 as and elevator control pushrod ends, which, if on a substantial number of small entities follows: not replaced, could result in loose under the criteria of the Regulatory mechanical elements in the control systems. Flexibility Act. PART 39—AIRWORTHINESS This could lead to control anomalies and loss We prepared a summary of the costs DIRECTIVES of airplane control. to comply with this proposed AD and placed it in the AD Docket. You may get 1. The authority citation for part 39 What Must I Do To Address This Problem? a copy of this summary by sending a continues to read as follows: (e) To address this problem, you must do request to us at the address listed under Authority: 49 U.S.C. 106(g), 40113, 44701. the following:

Actions Compliance Procedures

(1) Replace any type TLP–D or TLED rivets on With 50 hours time-in-service (TIS) after the Follow the ACCOMPLISHMENT INSTRUC- the aileron pushrod ends and elevator control effective date of this AD, unless already TIONS in Pacific Aerospace Corporation pushrod ends with a new Cherry Max 3213– done. Mandatory Service Bulletin No. PACSB/XL/ 4–2 or 3243–4–2 (oversize nominal 1⁄8-inch) 007, dated June 22, 2004. rivet. (2) Do not install: (i) any type TLP–D or TLED As of the effective date of this AD ...... Not Applicable. rivets on the aileron pushrod ends and eleva- tor control pushrod ends; or (ii) any aileron pushrods or elevator control pushrods with type TLP–D or TLED rivets on the ends.

May I Request an Alternative Method of for this AD by following the procedures in 14 Manager, Standards Office, Small Airplane Compliance? CFR 39.19. Unless FAA authorizes otherwise, Directorate, FAA. For information on any send your request to your principal already approved alternative methods of (f) You may request a different method of inspector. The principal inspector may add compliance, contact Karl Schletzbaum, compliance or a different compliance time comments and will send your request to the Aerospace Engineer, Small Airplane

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Directorate, 901 Locust, Room 302, Kansas installation of the turbine energy Comments Invited City, MO 64106; telephone: (816) 329–4146; absorbing ring. This proposed AD facsimile: (816) 329–4090. We invite you to submit any written results from an unacceptable rate of relevant data, views, or arguments Is There Other Information That Relates to uncontained 1st stage turbine wheel regarding this proposal. Send your This Subject? failures. We are proposing this AD to comments to an address listed under (g) New Zealand Airworthiness Directive minimize the risk of uncontained 1st ADDRESSES. Include ‘‘Docket No. FAA– Number DCA/40XL/1, dated June 24, 2004, stage turbine wheel fragments from 2004–19648; Directorate Identifier also addresses the subject of this AD. causing damage to the aircraft or 2004–NE–31–AD’’ in the subject line of May I Get Copies of the Documents damage to the second engine on twin- your comments. We specifically invite Referenced in This AD? engine installations which could lead to comments on the overall regulatory, (h) To get copies of the documents loss of control and loss of the aircraft. economic, environmental, and energy referenced in this AD, contact Pacific DATES: We must receive any comments aspects of the proposed AD. We will Aerospace Corporation, Ltd., Hamilton on this proposed AD by January 21, consider all comments received by the Airport, Private Bag HN 3027, Hamilton, New 2005. closing date and may amend the Zealand; telephone: 64 7 843 6144; facsimile: proposed AD in light of those 64 7 843 6134. To view the AD docket, go ADDRESSES: Use one of the following comments. to the Docket Management Facility; U.S. addresses to submit comments on this Department of Transportation, 400 Seventh We will post all comments we proposed AD. receive, without change, to http:// Street, SW., Nassif Building, Room PL–401, • Washington, DC, or on the Internet at DOT Docket Web site: Go to http:/ dms.dot.gov, including any personal http://dms.dot.gov. This is docket number /dms.dot.gov and follow the instructions information you provide. We will also FAA–2004–19444. for sending your comments post a report summarizing each Issued in Kansas City, Missouri, on electronically. substantive verbal contact with FAA November 15, 2004. • Government-wide rulemaking Web personnel concerning this proposed AD. Scott L. Sedgwick, site: Go to http://www.regulations.gov Using the search function of the DMS Acting Manager, Small Airplane Directorate, and follow the instructions for sending Web site, anyone can find and read the Aircraft Certification Service. your comments electronically. comments in any of our dockets, [FR Doc. 04–25795 Filed 11–19–04; 8:45 am] • Mail: Docket Management Facility; including the name of the individual BILLING CODE 4910–13–P U.S. Department of Transportation, 400 who sent the comment (or signed the Seventh Street, SW., Nassif Building, comment on behalf of an association, Room PL–401, Washington, DC 20590– business, labor union, etc.). You may DEPARTMENT OF TRANSPORTATION 001. review the DOT’s complete Privacy Act • Fax: (202) 493–2251. Statement in the Federal Register Federal Aviation Administration • published on April 11, 2000 (65 FR Hand Delivery: Room PL–401 on 19477–78), or you may visit http:// 14 CFR Part 39 the plaza level of the Nassif Building, dms.dot.gov. 400 Seventh Street, SW., Washington, [Docket No. FAA–2004–19648; Directorate DC, between 9 a.m. and 5 p.m., Monday Examining the AD Docket Identifier 2004–NE–31–AD] through Friday, except Federal holidays. You may examine the docket that RIN 2120–AA64 You can get the service information contains the proposal, any comments identified in this proposed AD from received and, any final disposition in Airworthiness Directives; Rolls-Royce Rolls-Royce Corporation, P.O. Box 420, person at the DMS Docket Offices Corporation (formerly Allison Engine Indianapolis, IN 46206–0420; telephone between 9 a.m. and 5 p.m., Monday Company) 250–B17B, –B17C, –B17D, (317) 230–6400; fax (317) 230–4243. through Friday, except Federal holidays. –B17E, –C20, –C20B, –C20F, –C20J, You may examine the comments on The Docket Office (telephone (800) 647– –C20S, and –C20W Turboprop and this proposed AD in the AD docket on 5227) is located on the plaza level of the Turboshaft Engines the Internet at http://dms.dot.gov. Department of Transportation Nassif Building at the street address stated in AGENCY: Federal Aviation FOR FURTHER INFORMATION CONTACT: ADDRESSES. Administration (FAA), DOT. Melissa T. Bradley, Aerospace Engineer, Comments will be available ACTION: Notice of proposed rulemaking Chicago Aircraft Certification Office, in the AD docket shortly after the DMS (NPRM). FAA, 2300 East Devon Avenue, Des receives them. Plaines, IL 60018–4696; telephone (847) SUMMARY: The FAA proposes to adopt a Discussion 294–8110; fax (847) 294–7834. new airworthiness directive (AD) for RRC conducted an analysis of Rolls-Royce Corporation (RRC) SUPPLEMENTARY INFORMATION: uncontained 1st stage turbine wheel (formerly Allison Engine Company) Docket Management System (DMS) failures and the effects on aircraft. The 250–B17B, –B17C, –B17D, –B17E, –C20, 1st stage turbine wheel can fail as a –C20B, –C20F, –C20J, –C20S, and We have implemented new result of in-service damage or gas –C20W turboprop and turboshaft procedures for maintaining AD dockets producer tiebolt failure. The in-service engines that do not have turbine energy electronically. As of May 17, 2004, we damage is caused primarily by thermal absorbing ring, part number (P/N) post new AD actions on the DMS and fatigue to the turbine wheels during hot 23035175, installed. This proposed AD assign a DMS docket number. We track starts but has also been linked to would require installation of a turbine each action and assign a corresponding improper alignment of the combustion energy absorbing ring in the plane of the Directorate identifier. The DMS docket liner and oil fires. 1st stage turbine wheel. This proposed No. is in the form ‘‘Docket No. FAA– The manufacturer developed a turbine AD may also require installation of 1st 200X–XXXXX.’’ Each DMS docket also energy absorbing ring to render turbine stage turbine nozzles, 2nd stage turbine lists the Directorate identifier (‘‘Old wheel fragments non-hazardous. We nozzles, and a gas producer support Docket Number’’) as a cross-reference have determined the present rate of assembly, all modified to allow for for searching purposes. hazardous 1st stage turbine wheel

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failures is unacceptable. This condition, the gas producer support assembly, and Comments Due Date if not corrected, could result in 20 work hours to install the 1st stage (a) The Federal Aviation Administration hazardous uncontained 1st stage turbine turbine nozzle, and 2nd stage turbine (FAA) must receive comments on this wheel fragments causing damage to the nozzle. The average labor rate is $65 per airworthiness directive (AD) action by airframe and the second engine on twin- work hour. Required turbine energy January 21, 2005. engine installations which could lead to absorbing rings cost about $10,765 per Affected ADs loss of control and loss of the aircraft. engine. Required gas producer support (b) None. Relevant Service Information assemblies cost about $2,500 per engine. Required 1st stage turbine nozzles and Applicability We have reviewed and approved the 2nd stage turbine nozzles cost about (c) This AD applies to Rolls-Royce technical contents of RRC Alert $1,000 per engine. Based on these Corporation (RRC) (formerly Allison Engine Commercial Engine Bulletin No. CEB– figures, we estimate the total cost of the Company) 250–B17B, –B17C, –B17D, –B17E, A–1255, Revision 4, dated September proposed AD to U.S. operators to be –C20, –C20B, –C20F, –C20J, –C20S, and –C20W turboprop and turboshaft engines that 29, 2004, that describes procedures for $87,325,000. installing a turbine energy absorbing do not have turbine energy absorbing ring, ring in the plane of the 1st stage turbine Regulatory Findings part number 23035175, installed. These engines are installed on, but not limited to, wheel. We have also reviewed and We have determined that this the following aircraft: approved the technical contents of RRC proposed AD would not have federalism Agusta A109 Alert Commercial Engine Bulletin No. implications under Executive Order Agusta A109A CEB–A–1254, Revision 3, dated May 21, 13132. This proposed AD would not Agusta A109A II 2004, that describes procedures for have a substantial direct effect on the B–N Group BN–2T modifying and installing a certain States, on the relationship between the Bell 206A P/N gas producer support assembly. We national Government and the States, or Bell 206B have also reviewed and approved the on the distribution of power and Bell 206L technical contents of RRC Alert Eurocopter Deutchland BO–105C responsibilities among the various Eurocopter Deutchland BO–105S Commercial Engine Bulletin No. CEB– levels of government. A–1253, Revision 4, dated May 21, Eurocopter France AS355E For the reasons discussed above, I Eurocopter France AS355F 2004, that describes procedures for certify that the proposed regulation: Eurocopter France AS355F1 modifying and installing a certain 1. Is not a ‘‘significant regulatory Eurocopter France AS355F2 P/N 1st stage turbine nozzle, and certain action’’ under Executive Order 12866; FH–1100 Manufacturing Corp FH–1100 P/N 2nd stage turbine nozzle. The 2. Is not a ‘‘significant rule’’ under the MDHI 369D actions required by RRC Alert DOT Regulatory Policies and Procedures MDHI 369E Commercial Engine Bulletin No. CEB– (44 FR 11034, February 26, 1979); and MDHI 369HM MDHI 369HS A–1254 and No. CEB–A–1253, if 3. Would not have a significant necessary, must be done before or MDHI 369HE economic impact, positive or negative, SIAI Marchetti s.r.l. SF600 simultaneously with the actions of Alert on a substantial number of small entities Commercial Engine Bulletin No. CEB– under the criteria of the Regulatory Unsafe Condition A–1255. Flexibility Act. (d) This AD results from an unacceptable FAA’s Determination and Requirements We prepared a summary of the costs rate of uncontained 1st stage turbine wheel failures. We are issuing this AD to minimize of the Proposed AD to comply with this proposal and placed it in the AD Docket. You may get a copy the risk of uncontained 1st stage turbine We have evaluated all pertinent wheel fragments from causing damage to the of this summary at the address listed information and identified an unsafe aircraft or damage to the second engine on under ADDRESSES. condition that is likely to exist or twin-engine installations which could lead to develop on other products of this same List of Subjects in 14 CFR Part 39 loss of control and loss of the aircraft. type design. We are proposing this AD, Air transportation, Aircraft, Aviation Compliance which would require installation of a safety, Safety. (e) You are responsible for having the turbine energy absorbing ring. The actions required by this AD performed at the proposed AD would require that these The Proposed Amendment next time the gas producer turbine rotor is actions be done using Alert Commercial Under the authority delegated to me disassembled for any reason, or within 1,750 Engine Bulletin No. CEB–A–1255. by the Administrator, the Federal hours time-since-last-overhaul, time-since- new, time-since-last-heavy-maintenance, or Costs of Compliance Aviation Administration proposes to time-since-last-hot section inspection after amend 14 CFR part 39 as follows: There are about 13,299 RRC 250– the effective date of this AD, whichever B17B, –B17C, –B17D, –B17E, –C20, occurs first, but no later than October 31, PART 39—AIRWORTHINESS 2011, unless already done. –C20B, –C20F, –C20J, –C20S, and DIRECTIVES –C20W turboprop and turboshaft Required Actions engines of the affected design in the 1. The authority citation for part 39 (f) If not already installed, install a worldwide fleet. We estimate that 5,000 continues to read as follows: modified gas producer support assembly to engines installed on helicopters of U.S. Authority: 49 U.S.C. 106(g), 40113, 44701. provide installation of the turbine energy registry require the installation of a absorbing ring. Use paragraph 2. of RRC Alert turbine energy absorbing ring. Of those § 39.13 [Amended] Commercial Engine Bulletin No. CEB–A– 5,000 engines, we also estimate that 2. The FAA amends § 39.13 by adding 1254, Revision 3, dated May 21, 2004, to do 4,000 engines require installation of a the following new airworthiness the modification and installation. (g) If not already installed, install a gas producer support assembly, 1st stage directive: modified 1st stage turbine nozzle, 2nd stage turbine nozzle, and 2nd stage turbine Rolls-Royce Corporation (formerly Allison turbine nozzle, and gas producer support nozzle. It takes about 16 work hours per Engine Company): Docket No. FAA– assembly to provide installation of the engine to install the turbine energy 2004–19648; Directorate Identifier 2004– turbine energy absorbing ring. Use paragraph absorbing ring, 35 work hours to install NE–31–AD. 2. of RRC Alert Commercial Engine Bulletin

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No. CEB–A–1253, Revision 4, dated May 21, stiffeners. The actions specified by this request to change the service bulletin 2004, to do the modification and installation. new proposed AD are intended to reference as two separate issues. (h) Install a turbine energy absorbing ring prevent fatigue failure of certain frame • For each issue, state what specific in the plane of the 1st stage turbine wheel. stiffener fittings, which could result in change to the proposed AD is being Use paragraphs 2.A. and 2.B. of RRC Alert reduced structural integrity of the requested. Commercial Engine Bulletin No. CEB–A– • Include justification (e.g., reasons or 1255, Revision 4, dated September 29, 2004, airplane. This action is intended to to do the installation. address the identified unsafe condition. data) for each request. Comments are specifically invited on DATES: Comments must be received by Alternative Methods of Compliance December 17, 2004. the overall regulatory, economic, (i) The Manager, Chicago Aircraft environmental, and energy aspects of ADDRESSES: Submit comments in Certification Office, has the authority to the proposed rule. All comments approve alternative methods of compliance triplicate to the Federal Aviation submitted will be available, both before for this AD if requested using the procedures Administration (FAA), Transport and after the closing date for comments, found in 14 CFR 39.19. Airplane Directorate, ANM–114, in the Rules Docket for examination by Attention: Rules Docket No. 2003–NM– interested persons. A report Related Information 256–AD, 1601 Lind Avenue, SW., (j) None. summarizing each FAA-public contact Renton, Washington 98055–4056. concerned with the substance of this Issued in Burlington, Massachusetts, on Comments may be inspected at this proposal will be filed in the Rules November 16, 2004. location between 9 a.m. and 3 p.m., Docket. Jay J. Pardee, Monday through Friday, except Federal Commenters wishing the FAA to Manager, Engine and Propeller Directorate, holidays. Comments may be submitted acknowledge receipt of their comments Aircraft Certification Service. via fax to (425) 227–1232. Comments submitted in response to this action [FR Doc. 04–25794 Filed 11–19–04; 8:45 am] may also be sent via the Internet using must submit a self-addressed, stamped BILLING CODE 4910–13–P the following address: 9-anm- postcard on which the following [email protected]. Comments sent statement is made: ‘‘Comments to via fax or the Internet must contain Docket Number 2003–NM–256–AD.’’ DEPARTMENT OF TRANSPORTATION ‘‘Docket No. 2003–NM–256–AD’’ in the The postcard will be date stamped and subject line and need not be submitted returned to the commenter. Federal Aviation Administration in triplicate. Comments sent via the Internet as attached electronic files must Availability of NPRMs 14 CFR Part 39 be formatted in Microsoft Word 97 or Any person may obtain a copy of this [Docket No. 2003–NM–256–AD] 2000 or ASCII text. NPRM by submitting a request to the The service information referenced in FAA, Transport Airplane Directorate, RIN 2120–AA64 the proposed rule may be obtained from ANM–114, Attention: Rules Docket No. Airbus Industrie, 1 Rond Point Maurice Airworthiness Directives; Airbus Model 2003–NM–256–AD, 1601 Lind Avenue, Bellonte, 31707 Blagnac Cedex, France. SW., Renton, Washington 98055–4056. A330, A340–200, and A340–300 Series This information may be examined at Airplanes the FAA, Transport Airplane Discussion AGENCY: Federal Aviation Directorate, 1601 Lind Avenue, SW., A proposal to amend part 39 of the Administration, DOT. Renton, Washington. Federal Aviation Regulations (14 CFR ACTION: Supplemental notice of FOR FURTHER INFORMATION CONTACT: Tim part 39) to add an airworthiness proposed rulemaking; reopening of Backman, Aerospace Engineer, directive (AD), applicable to certain comment period. International Branch, ANM–116, FAA, Airbus Model A330, A340–200, and Transport Airplane Directorate, 1601 A340–300 series airplanes, was SUMMARY: This document revises an Lind Avenue, SW., Renton, Washington published as a notice of proposed earlier proposed airworthiness directive 98055–4056; telephone (425) 227–2797; rulemaking (NPRM) in the Federal (AD), applicable to certain Airbus fax (425) 227–1149. Register on April 1, 2004 (69 FR 17084). Model A330, A340–200, and A340–300 SUPPLEMENTARY INFORMATION: That NPRM would have required initial series airplanes, that would have and repetitive inspections of certain required initial and repetitive Comments Invited frame stiffeners to detect cracking. If any inspections of certain frame stiffeners to Interested persons are invited to cracking was found, that proposal detect cracking. If any cracking was participate in the making of the would have required replacement of the found, that proposal would have proposed rule by submitting such stiffener with a new, reinforced required replacement of the stiffener written data, views, or arguments as stiffener. Replacement of the stiffener with a new, reinforced stiffener. they may desire. Communications shall would constitute terminating action for Replacement of the stiffener would identify the Rules Docket number and certain inspections. That NPRM would constitute terminating action for certain be submitted in triplicate to the address also have required a one-time inspection inspections. That proposal would also specified above. All communications of any new, reinforced stiffeners; and have required a one-time inspection of received on or before the closing date repair or replacement of the new, any new, reinforced stiffener; and repair for comments, specified above, will be reinforced stiffener if any cracking was or replacement of the new, reinforced considered before taking action on the found during the one-time inspection. stiffener if any cracking was found proposed rule. The proposals contained That NPRM also provided for an during the one-time inspection. That in this action may be changed in light optional terminating action for certain proposal also provided for an optional of the comments received. requirements of that AD. That NPRM terminating action for certain Submit comments using the following was prompted by issuance of mandatory requirements of that AD. This new format: continuing airworthiness information by action revises the proposed rule by • Organize comments issue-by-issue. a civil airworthiness authority. Cracking reducing the compliance time for the For example, discuss a request to and consequent fatigue failure of certain initial inspection of the affected frame change the compliance time and a frame stiffeners, if not corrected, could

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result in reduced structural integrity of schedules, and the compliance time certain lengths, and corrective actions at the airplane. recommended by the airplane various flight-cycle thresholds, we infer manufacturer for the timely that the commenter is requesting that Comments accomplishment of the required actions. the original NPRM allow flight with Due consideration has been given to In consideration of these items, we have cracking. We do not agree. The the comments received in response to determined that a grace period of 6 manufacturer did not provide data that the original NPRM. months will ensure an acceptable level showed the ultimate strength capability No Objection to Proposed AD of safety, and is an appropriate interval of a stiffener with cracking. Also, the of time wherein the required actions can manufacturer did not provide fatigue One commenter states that it does not be accomplished during scheduled analysis that showed, under a load own or operate airplanes affected by the maintenance intervals for the majority condition, that the cracking did not original NPRM. The commenter does of affected operators. However, grow, or that the cracking grew at an not have any further comments. according to the provisions of paragraph acceptably slow rate, during the period Requests To Change Compliance Time (g) of this supplemental NPRM, we may time of time between the identification approve a request to adjust the One commenter, the manufacturer, of the cracking and the corrective compliance time if the request includes actions. We have determined that, due states that the French airworthiness data that justify that a different directives mandate accomplishment of to the safety implications and compliance time would provide an consequences associated with such the initial inspection of the FR12A acceptable level of safety. This stiffener before the accumulation of cracking, all fittings with cracking must supplemental NPRM has not been be replaced before further flight. This 13,000 total flight cycles. The original changed regarding this issue. NPRM has a compliance time of within supplemental NPRM has not been 6 months or 13,000 flight cycles after Request To Change Cost Impact Section changed regarding this issue. the effective date of the AD, whichever The same commenter requests that the Explanation of Change to Relevant is later, for the initial inspection. estimated work hours for access and Service Information Referenced in This We infer that the commenter is close-up of the inspection area be Supplemental NPRM requesting that the compliance time of included in the Cost Impact section of Since the issuance of the original the original NPRM be revised to match the original NPRM. The commenter NPRM, Airbus has issued Service what is in the parallel French states that approximately 140 work Bulletin A340–53–4141, Revision 02, airworthiness directives. We partially hours will be needed for access and dated August 13, 2004 (for Model A340– agree. The compliance time in close-up. The commenter agrees with 200 and A340–300 series airplanes). paragraph (a) of this supplemental the estimate in the original NPRM that (The original NPRM refers to A340–53– NPRM has been changed to ‘‘Prior to the approximately 4 work hours will be 4141, Revision 01, dated July 7, 2003, as accumulation of 13,000 total flight needed to accomplish the inspection. cycles or within 6 months after the We do not agree that the estimated the appropriate source of service effective date of this AD, whichever work hours for access and close-up of information for the proposed actions for occurs later.’’ Although the French the inspection area should be included these airplanes.) Revision 02 of the airworthiness directives do not include in this supplemental NPRM. As stated service bulletin adds details to Figure 2 a grace period, we find it necessary to in the original NPRM, ‘‘the cost impact and changes the identification number include a 6-month grace period to avoid figures * * * represent only the time of the modification kits. Revision 02 grounding airplanes that have necessary to perform the specific actions also includes a new figure, Figure 13, accumulated 13,000 total flight cycles or actually required by the AD.’’ The that contains instructions for reworking more as of the effective date of the AD. specific actions required by the AD are a stiffener fitting. Figure 13 only Another commenter, an operator, repetitive high-frequency eddy current pertains to operators that have certain requests that the 6-month grace period inspections of the FR12A stiffener modification kits. We have changed in paragraph (a) of the original NPRM be fitting. We expect that most operators paragraphs (a), (b), (c), and (f) of this extended to 18 months. The commenter will be able to do the actions specified supplemental NPRM to reference states that it anticipates incorporation of in this supplemental NPRM during Revision 02 of the service bulletin. the subject modification during scheduled maintenance. We attempt to Explanation of Change to Paragraph (e) upcoming maintenance checks, and that set compliance times that generally of This Supplemental NPRM an 18-month compliance time will align coincide with operators’ maintenance with those maintenance checks. The schedules. However, because operators’ Paragraph (e) of the original NPRM commenter adds that if an operator has schedules vary substantially, we cannot inadvertently referenced Airbus Service already accumulated more than 11,400 accommodate every operator’s optimal Bulletin A340–53–4137, dated May 26, total flight cycles or 33,100 total flight scheduling in each AD. The time 2003, twice. We have changed hours on the airplane, the operator may necessary for gaining access to and paragraph (e) of this supplemental be forced to do the subject modification closing the inspection area is incidental. NPRM to delete one of the references to outside of a heavy maintenance This supplemental NPRM has not been Service Bulletin A340–53–4137, and to environment, which would extend the changed regarding this issue. give credit for actions done before the out-of-service time. The commenter effective date of the AD in accordance notes that extending the grace period to Request To Allow Temporary Flight with Airbus Service Bulletin A340–53– 18 months would allow for With Cracking 4141, dated May 26, 2003; and A340– accomplishment of the modification One commenter, the manufacturer, 53–4141, Revision 01, dated July 7, without specially scheduled downtime notes that paragraph (b) of the original 2003. outside of scheduled maintenance. NPRM specifies replacement of cracked Additional Change to This We do not agree. In developing an FR12A stiffeners before further flight. Supplemental NPRM appropriate grace period for this action, Since the service bulletins and the we considered the safety implications, parallel French airworthiness directives The number of affected Airbus Model operators’ normal maintenance allow temporary flight with cracks of A330 airplanes has been updated from

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9 to 20 in the Cost Impact section of this various levels of government. Therefore, (for Model A340–200 and A340–300 series supplemental NPRM. it is determined that this proposal airplanes); as applicable. Repeat the would not have federalism implications inspection at intervals not to exceed 10,000 Conclusion under Executive Order 13132. flight cycles until the replacement required by paragraph (b) of this AD is accomplished; Since a certain change expands the For the reasons discussed above, I scope of the original NPRM, the FAA or until the optional terminating action in certify that this proposed regulation (1) paragraph (d) of this AD is accomplished. has determined that it is necessary to is not a ‘‘significant regulatory action’’ The actions in paragraphs (b) and (d) of this reopen the comment period to provide under Executive Order 12866; (2) is not AD constitute terminating action for the additional opportunity for public a ‘‘significant rule’’ under the DOT repetitive inspections only for the side on comment. Regulatory Policies and Procedures (44 which the actions are taken. Cost Impact FR 11034, February 26, 1979); and (3) if Replacement promulgated, will not have a significant The FAA estimates that 20 Model (b) If any cracking is detected during any economic impact, positive or negative, inspection required by paragraph (a) of this A330 airplanes of U.S. registry would be on a substantial number of small entities affected by this proposed AD, that it AD: Before further flight, replace the affected under the criteria of the Regulatory FR12A stiffener with a new reinforced would take approximately 4 work hours Flexibility Act. A copy of the draft FR12A stiffener in accordance with the per airplane to accomplish the proposed regulatory evaluation prepared for this Accomplishment Instructions of Airbus inspection, and that the average labor action is contained in the Rules Docket. Service Bulletin A330–53–3135, Revision 01, rate is $65 per work hour. Based on A copy of it may be obtained by dated July 7, 2003; or Airbus Service Bulletin A340–53–4141, Revision 02, dated August these figures, the cost impact of the contacting the Rules Docket at the proposed AD on U.S. operators is 13, 2004; as applicable. Replacement of the location provided under the caption stiffener constitutes terminating action for estimated to be $5,200, or $260 per ADDRESSES. airplane, per inspection cycle. the repetitive inspections required by List of Subjects in 14 CFR Part 39 paragraph (a) of this AD, only for the side on The cost impact figure discussed which the replacement is made. above is based on assumptions that no Air transportation, Aircraft, Aviation Follow-On Inspection operator has yet accomplished any of safety, Safety. the proposed requirements of this AD (c) For airplanes on which a new, action, and that no operator would The Proposed Amendment reinforced stiffener is installed in accordance accomplish those actions in the future if Accordingly, pursuant to the with paragraph (b) of this AD: Within 14,600 flight cycles following the installation, this AD were not adopted. The cost authority delegated to me by the impact figures discussed in AD perform an HFEC inspection of the FR12A Administrator, the Federal Aviation stiffener fitting for cracking in accordance rulemaking actions represent only the Administration proposes to amend part with Airbus Service Bulletin A330–53–3135, time necessary to perform the specific 39 of the Federal Aviation Regulations Revision 01, dated July 7, 2003; or Airbus actions actually required by the AD. (14 CFR part 39) as follows: Service Bulletin A340–53–4141, Revision 02, These figures typically do not include dated August 13, 2004; as applicable. If any incidental costs, such as the time PART 39—AIRWORTHINESS cracking is detected, before further flight, required to gain access and close up, DIRECTIVES repair or replace the new reinforced stiffener planning time, or time necessitated by with a new stiffener in a manner approved other administrative actions. 1. The authority citation for part 39 by either the Manager, International Branch, continues to read as follows: ANM–116, FAA; or the DGAC (or its If an operator chooses to do the delegated agent). optional terminating action rather than Authority: 49 U.S.C. 106(g), 40113, 44701. continue the repetitive inspections, it Optional Terminating Action § 39.13 [Amended] would take about 74 work hours per (d) Replacement of the FR12A stiffeners airplane to accomplish the installations, 2. Section 39.13 is amended by with new, reinforced stiffeners; installation at an average labor rate of $65 per work adding the following new airworthiness of new reinforced junction fittings between hour. Required parts would cost about directive: FR12A/FR13 and FR13/FR13A at the stringer 26 level; and installation of a new shear web $7,860 per airplane. Based on these Airbus: Docket 2003–NM–256–AD. that joins the fitting to the cabin floor track; figures, we estimate the cost of this Applicability: Model A330 series airplanes; in accordance with the Accomplishment optional terminating action to be and Model A340–200 and A340–300 series Instructions of Airbus Service Bulletin A330– $12,670 per airplane. airplanes; except those on which Airbus 53–3130, Revision 01, dated October 10, Currently, there are no affected Model Modification 49694 has been installed; 2003; or A340–53–4137, Revision 01, dated A340–200 or A340–300 series airplanes certificated in any category. October 10, 2003; as applicable; constitutes on the U.S. Register. However, if an Compliance: Required as indicated, unless terminating action for the inspection affected airplane is imported and placed accomplished previously. requirements of paragraphs (a) and (c) of this To prevent fatigue failure of certain frame on the U.S. Register in the future, it AD, only for the side on which the stiffener fittings, which could result in replacement and installations are made. would take approximately 4 work hours reduced structural integrity of the airplane, to accomplish the proposed inspection, accomplish the following: Actions Accomplished per Previous Issues of at an average labor rate of $65 per work Service Bulletins hour. Based on these figures, we Initial and Repetitive Inspections (e) Actions accomplished before the estimate the cost of this AD to be $260 (a) Prior to the accumulation of 13,000 total effective date of this AD in accordance with per airplane, per inspection cycle. flight cycles or within 6 months after the Airbus Service Bulletins A330–53–3130, effective date of this AD, whichever occurs dated May 26, 2003; A330–53–3135, dated Regulatory Impact later: Conduct a high-frequency eddy current May 26, 2003; A340–53–4137, dated May 26, The regulations proposed herein (HFEC) inspection for cracking of the FR12A 2003; A340–53–4141, dated May 26, 2003; or stiffener fitting in accordance with the would not have a substantial direct A340–53–4141, Revision 01, dated July 7, Accomplishment Instructions of Airbus 2003; are considered acceptable for effect on the States, on the relationship Service Bulletin A330–53–3135, Revision 01, compliance only with the following between the national Government and dated July 7, 2003 (for Model A330 series requirements of this AD: The HFEC the States, or on the distribution of airplanes); or Airbus Service Bulletin A340– inspections required by paragraph (a) of this power and responsibilities among the 53–4141, Revision 02, dated August 13, 2004 AD, the replacement required by paragraph

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(b) of this AD, and the actions in paragraph FOR FURTHER INFORMATION CONTACT: Mr. Rulemaking Requirements (d) of this AD. Stephen Baker, Office of Strategic 1. Executive Order 12866: This rule Industries and Economic Security, No Reporting Requirements has been determined to be not (f) Although the Accomplishment telephone: (202) 482–2017 or e-mail: significant under EO 12866. [email protected]. Instructions of Airbus Service Bulletin A330– 2. Executive Order 13132: This rule 53–3135, Revision 01, dated July 7, 2003; and Airbus Service Bulletin A340–53–4141, SUPPLEMENTARY INFORMATION: Under does not contain policies with Revision 02, dated August 13, 2004; describe Title I of the Defense Production Act of Federalism implications as this term is procedures for submitting certain 1950, as amended (50 U.S.C. App. 2061 defined in EO 13132. information to the manufacturer, this AD et seq.), the President is authorized to 3. Paperwork Reduction Act: This rule does not require those actions. require preferential acceptance and contains collection of information Alternative Methods of Compliance performance of contracts or orders requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 (g) In accordance with 14 CFR 39.19, the supporting certain approved national Manager, International Branch, ANM–116, defense and energy programs, and to et seq.) (PRA). FAA, Transport Airplane Directorate, is allocate materials, services, and Notwithstanding any other provision authorized to approve alternative methods of facilities in such a manner as to promote of law, no person is required to respond compliance for this AD. these approved programs. Additional to, nor shall any person be subject to a Note 1: The subject of this AD is addressed priorities authority is found in section penalty for failure to comply with a in French airworthiness directives 2003– 18 of the Selective Service Act of 1948 collection of information, subject to the requirements of the PRA unless that 205(B), dated May 28, 2003; and 2003– (50 U.S.C. App. 468), 10 U.S.C. 2538, 206(B), dated May 28, 2003. collection of information displays a and 50 U.S.C. 82. DPAS authority has currently valid Office of Management also been extended to support Issued in Renton, Washington, on and Budget (OMB) control number. November 10, 2004. emergency preparedness activities Comments may be sent to Mr. Stephen Ali Bahrami, under Title VI of the Robert T. Stafford Baker, Office of Strategic Industries and Manager, Transport Airplane Directorate, Disaster Relief and Emergency Economic Security; fax: (202) 482–5650; Aircraft Certification Service. Assistance Act, as amended (45 U.S.C. e-mail: [email protected]. These [FR Doc. 04–25793 Filed 11–19–04; 8:45 am] 5915 et seq.). collections have been approved by the BILLING CODE 4910–13–P Originally published in 1984, the OMB under control number 0694–0092, DPAS regulations were revised on June ‘‘Procedures for Acceptance or Rejection 11, 1998 (63 FR 31918), to update, of a Rated Order,’’ which carries a DEPARTMENT OF COMMERCE streamline, and clarify a number of burden hour estimate of 1 to 15 minutes provisions. The purpose of the DPAS is per response. Send comments regarding Bureau of Industry and Security to assure the timely availability of these burden estimates or any other aspect of these collections of 15 CFR Part 700 industrial resources to meet current national defense and emergency information, including suggestions for [Docket No. 041026293–4293–01] preparedness program requirements, reducing the burden, to David Rostker, including critical infrastructure OMB Desk Officer, by e-mail at RIN 0694–AD35 [email protected] or by fax to protection and restoration, as well as (202) 395–7285; and to the Regulatory Defense Priorities and Allocations provide an operating system to support Policy Division, Bureau of Industry and System: Electronic Transmission of rapid industrial response in a national Reasons for Rejecting Rated Orders Security, Department of Commerce, P.O. emergency. In pursuit of the DPAS Box 273, Washington, DC 20044. mission, the Department of Commerce AGENCY: Bureau of Industry and 4. Regulatory Flexibility Act: The endeavors to minimize disruptions to Security, Department of Commerce. Chief Counsel for Regulation of the the normal commercial activities of ACTION: Proposed rule. Department of Commerce has certified industry. to the Counsel for Advocacy of the SUMMARY: This proposed rule would The Bureau of Industry and Security Small Business Administration that this amend the Defense Priorities and (BIS) is proposing to amend the rule would not have a significant Allocations System (DPAS) regulations regulations that require persons to economic impact on a substantial to allow a person who has rejected a transmit rejections of DPAS rated orders number of small entities (i.e., companies rated order to give his or her reasons for in writing to allow these transmissions or other organizations involved in the rejection through electronic means to be made electronically. Industry has production for the U.S. defense rather than requiring the person to asserted that the current procedure industrial base). submit the rationale in writing. hampers efficiency. As a result, BIS This rule would amend DPAS DATES: Comments must be received on proposes to amend 15 CFR 700.13(d)(1) regulations to allow a person who has or before December 22, 2004. to allow a person the option of rejected a rated order to give his or her ADDRESSES: Written comments should transmitting his or her rationale for reasons for the rejection through be sent to the Federal eRulemaking rejecting a rated order electronically to electronic means rather than requiring Portal: http://www.regulations.gov or to the appropriate contracting officer or the person to submit the rationale in William J. Denk, Director of the Defense agency. If this rule is adopted, a person writing. Previously, BIS required the Programs Division, Office of Strategic would be able to transmit his or her rationale for rejection be transmitted in Industries and Economic Security, rationale for rejection either writing, not electronically. This change Room 3876, U.S. Department of electronically or in writing. This will reduce the burden on industry for Commerce, 14th Street and Constitution staff time and postage and improve the amendment to the DPAS regulations Avenue, NW., Washington, DC 20230; efficiency of small business record should allow this information to be Fax: (202) 482–5650, or e-mail: keeping. Those small businesses [email protected]. transmitted more quickly. without electronic capability will

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continue to be able to submit their Executive Order 12656, 53 FR 226, 3 CFR, ADDRESSES: Send submissions to: rejection rationale in writing. 1988 Comp., p. 585. CC:PA:LPD:PR (REG–145535–02), room It is estimated that 25 percent (or 2. Revise § 700.13(d)(1) to read as 5203, Internal Revenue Service, PO Box 1,750) of the 7,000 DPAS respondents follows: 7604, Ben Franklin Station, Washington, tasked with notifying their customer of DC 20044. Submissions may be hand- their rationale for rejection are small § 700.13 Acceptance and rejection of rated delivered Monday through Friday entities affected by this rule. This orders. between the hours of 8 a.m. and 4 p.m. estimate is based on data provided by * * * * * to: CC:PA:LPD:PR (REG–145535–02), the Department of Defense (DoD)1 on (d) Customer notification Courier’s Desk, Internal Revenue the number of entities participating in requirements. (1) A person must accept Service, 1111 Constitution Avenue, the DPAS program. DoD estimates that or reject a rated order and transmit the NW., Washington, DC, or sent one percent (or 7,000) of 700,000 rated acceptance or rejection in writing (hard electronically, via the IRS Internet site orders result in rejection notices and copy), or in electronic format, within at http://www.irs.gov/regs or via the require the related transmittal of the fifteen (15) working days after receipt of Federal eRulemaking Portal at http:// rationale for rejection. a DO rated order and within ten (10) www.regulations.gov (IRS—REG– This rule would have a minor positive working days after receipt of a DX rated 145535–02). impact on the small entities affected by order. If the order is rejected, the person FOR FURTHER INFORMATION CONTACT: this rule. It would save these entities must also provide the reasons for the Concerning the proposed regulations, approximately five minutes per rejection, pursuant to paragraphs (b) and Krishna P. Vallabhaneni at (202) 622– response (or 146 hours annually) in (c) of this section, in writing (hard copy) 7550; concerning submissions of reduced public burden. Because the or electronic format. comments or requests for a hearing, impact to small entities would be small, * * * * * Robin R. Jones, (202) 622–7180 (not toll- I certify that this rule would not have a Dated: November 12, 2004. free numbers). significant economic impact on a Peter Lichtenbaum, SUPPLEMENTARY INFORMATION: substantial number of small entities. This amendment does not include any Assistant Secretary for Export Background and Explanation of Administration. new reporting or recordkeeping Provisions [FR Doc. 04–25718 Filed 11–19–04; 8:45 am] requirements and will not duplicate, This document contains proposed BILLING CODE 3510–33–P overlap or conflict with other laws or regulations under section 355(e) of the regulations. Internal Revenue Code of 1986. Section List of Subjects in 15 CFR Part 700 355(e), enacted as part of the Taxpayer DEPARTMENT OF THE TREASURY Relief Act of 1997 (Pub. L. 105–34, 111 Administrative practice and Internal Revenue Service Stat 788 (1997)), provides that stock of procedure, Business and industry, a controlled corporation (Controlled) Government contracts, National defense, 26 CFR Part 1 generally will not be treated as qualified Reporting and recordkeeping property under section 355(c)(2) or requirements, Strategic and critical [REG–145535–02] 361(c)(2) if the Controlled stock is materials. RIN 1545–BB85 distributed as part of a plan (or series of Accordingly, the DPAS regulations related transactions) pursuant to which (15 CFR part 700) are proposed to be Guidance Regarding Predecessors and one or more persons acquire directly or amended as follows: Successors Under Section 355(e); indirectly stock representing a 50- PART 700—[AMENDED] Limitation on Gain Recognition Under percent or greater interest in the Section 355(e) distributing corporation (Distributing) or 1. The authority citation is revised to Controlled. On April 26, 2002, the read as follows: AGENCY: Internal Revenue Service (IRS), Internal Revenue Service (IRS) and the Treasury. Authority: Titles I and VII of the Defense Treasury Department published Production Act of 1950, as amended (50 ACTION: Notice of proposed rulemaking. temporary regulations (TD 8988) in the U.S.C. App. 2061, et seq.), Title VI of the Federal Register (67 FR 20632) under Robert T. Stafford Disaster Relief and SUMMARY: This document contains section 355(e) providing guidance Emergency Assistance Act (42 U.S.C. 5195 et proposed regulations that define the regarding whether a distribution and an seq.), and Executive Order 12919, as terms predecessor and successor for acquisition of Distributing or Controlled amended, 59 FR 29525, 3 CFR, 1994 Comp., purposes of section 355(e). These are part of a ‘‘plan (or series of related p. 901, as amended by Executive Order proposed regulations provide guidance transactions).’’ See Treas. Reg. § 1.355– 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. in determining whether a corporation is 7T. Section 355(e)(4)(D) provides that, 166; section 18 of the Selective Service Act a predecessor or successor of a for purposes of section 355(e), ‘‘any of 1948 (50 U.S.C. App. 468), 10 U.S.C. 2538, distributing or controlled corporation, 50 U.S.C. 82, and Executive Order 12742, 56 reference to a controlled corporation or FR 1079, 3 CFR, 1991 Comp., p. 309; and as well as rules to assist taxpayers in a distributing corporation shall include determining whether an acquisition of a reference to any predecessor or 1 Consistent with section 201(b) of Executive an interest in a corporation would cause successor of such corporation.’’ Order 12919, the Department of Commerce has a distributing corporation to recognize Practitioners have commented that delegated authority to DoD to use the DPAS gain under section 355(e). These guidance regarding the definitions of regulations for priority rating of contracts and proposed regulations affect corporations orders for all materials, services, and facilities predecessor and successor is desirable. needed in support of approved programs with that distribute the stock of controlled Therefore, these regulations propose respect to military production and construction, corporations in distributions described definitions of predecessor and military assistance to foreign nations, stockpiling, in section 355. successor, rules for determining outer space, and directly related activities. See DATES: Department of Commerce DPAS Delegation #1 (July Written or electronic comments whether there has been an acquisition of 1, 1998). DoD is the single largest user of the DPAS and requests for a public hearing must a predecessor of Distributing, regulations. be received by February 22, 2005. Distributing, or Controlled in certain

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cases, and rules limiting the amount of whether the distribution and any subsidiary of Distributing, in a gain required to be recognized as a acquisitions (deemed or actual) of stock reorganization under section result of acquisitions of stock that in the of the predecessor are part of a plan. 368(a)(1)(D). Distributing then aggregate represent a 50-percent or distributes the stock of Controlled to its Predecessors of Controlled greater interest in a predecessor of shareholders pro rata in a distribution to Distributing. In the course of developing these which section 355(a) applies. In this regulations, the IRS and Treasury case, there is a separation of the X assets Predecessors of Distributing Department considered to what extent a in a distribution to which section 355(a) The definition of a predecessor of corporation’s transfer of property to applies. Under the definition of a Distributing in these proposed Controlled in a transaction to which predecessor of Controlled described regulations is intended to reflect the fact section 381 applies implicates the above, Y will be treated as a predecessor that section 355(e) generally denies tax- policies underlying section 355(e). of Controlled, and because Distributing free treatment under sections 355(c)(1) Generally, Controlled will not be able to acquires in a transaction to which and 361(c)(1) if there is a division of a transfer property that it receives in such section 381 applies stock of a corporation’s assets to which section a transaction to Distributing tax-free. predecessor of Controlled from X, X will 355(a) applies that is coupled with One exception is where Controlled itself be treated as a predecessor of planned acquisitions of stock distributes the stock of another Distributing. representing in the aggregate a 50- corporation in a distribution to which percent or greater interest in section 355 applies. In these cases, Multiple Predecessors Distributing or Controlled. The however, Controlled will functionally Under the proposed regulations, more proposed regulations generally provide be a distributing corporation, and the than one corporation may be a that a predecessor of Distributing transferor of property to Controlled may predecessor of Distributing or includes a corporation that, before the be a predecessor of the distributing Controlled. For example, if more than distribution, transfers property to corporation. Therefore, as a general one corporation transfers property to Distributing in a transaction to which matter, it appears that property Distributing in transactions to which section 381 applies if Distributing transferred to Controlled cannot be section 381 applies, each of the transfers some (but not all) of the divided tax-free between Distributing transferring corporations may be a acquired property to Controlled (or a and Controlled in the same way that predecessor of Distributing. However, a predecessor of Controlled, as described property transferred to Distributing can corporation that transfers its assets in a below) and the basis of such property be divided tax-free. Accordingly, the transaction to which section 381 applies immediately after the transfer to policy underlying the definition of a to a predecessor of Distributing is not Controlled (or a predecessor of predecessor of Distributing does not also treated as a predecessor of Controlled) is determined in whole or in appear to necessitate a definition of a Distributing. The IRS and Treasury part by reference to the basis of the predecessor of Controlled. Department recognize that such property in the hands of Distributing Nonetheless, solely for purposes of transfers of assets to a predecessor of immediately before the transfer. For determining whether a corporation is a Distributing could be part of the plan example, if before the distribution P predecessor of Distributing, calculating that includes the distribution, but are merges into D in a statutory merger certain limitations on gain recognition concerned that treating such transferring under section 368(a)(1)(A) and D described below, and applying a special corporations as predecessors of transfers some but not all of the affiliated group rule described below, Distributing would add substantial acquired P assets to C in exchange for these proposed regulations define a complexity. Nonetheless, the IRS and C stock in a reorganization under predecessor of Controlled as a Treasury Department continue to section 368(a)(1)(D), then P is a corporation that before the distribution consider whether such corporations predecessor of D. transfers property to Controlled in a should be treated as a predecessor of The proposed regulations also provide transaction to which section 381 Distributing. that a predecessor of Distributing applies. Under these proposed includes a corporation that, before the regulations, for no other purpose can a Successors distribution, transfers property to corporation be a predecessor of The definition of a successor of Distributing in a transaction to which Controlled. Thus, acquisitions of stock Distributing or Controlled proposed in section 381 applies if some but not all that are part of a plan that includes the these regulations is intended to identify of the property transferred to distribution and that in the aggregate corporations that are properly viewed as Distributing includes Controlled stock represent a 50-percent or greater interest a continuation of Distributing or and, after the combining transaction, in a predecessor of Controlled will not Controlled for purposes of section Distributing transfers less than all of the cause Distributing to recognize gain. 355(e). Therefore, the proposed property acquired (other than the However, the IRS and Treasury regulations define a successor of Controlled stock) to Controlled. In such Department continue to study whether Distributing as any corporation to which cases, the distribution of Controlled there may be other situations in which Distributing transfers property after the stock, even without a pre-distribution a corporation should be treated as a distribution in a transaction to which transfer of acquired assets to Controlled, predecessor of Controlled. section 381 applies and a successor of effects a division of the predecessor’s The definition of a predecessor of Controlled as any corporation to which assets. Controlled ensures that a corporation is Controlled transfers property after the The definition of a predecessor of treated as a predecessor of Distributing distribution in a transaction to which Distributing may result in a corporation in the following situation and similar section 381 applies. More than one being treated as a predecessor of ones. Suppose Distributing acquires all corporation may be a successor of Distributing even if the distribution and the assets of X (including all the Distributing or Controlled. For example, the combination of the predecessor and outstanding stock of Y) in a transaction if after a distribution Distributing Distributing are not part of a plan. Once to which section 381 applies. After the transfers property to another a predecessor of Distributing is acquisition, Distributing causes Y to corporation (X) in a transaction to identified, it must be determined merge into Controlled, a wholly owned which section 381 applies, and X

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transfers property to another there has been an acquisition of stock of percent or greater interest in a corporation (Y) in a transaction to Distributing or Controlled if there is an predecessor of Distributing are part of a which section 381 applies, then each of acquisition of stock of a successor of plan, then the amount of gain that X and Y may be a successor of Distributing or Controlled. Therefore, Distributing recognizes by reason of Distributing. In this case, the acquisitions of a successor of such acquisitions will not exceed the determination of whether Y is a Distributing or Controlled and amount of gain, if any, that the successor of Distributing is made after acquisitions of Distributing or predecessor of Distributing would have the determination of whether X is a Controlled (before or after the recognized if, immediately before the successor of Distributing. distribution) pursuant to a plan are distribution, the predecessor had combined to determine whether there Special Rules for Measuring Certain transferred the property that was have been acquisitions of stock that in Acquisitions transferred to Controlled and the stock the aggregate represent a 50-percent or of Controlled that it transferred to Whether there have been acquisitions greater interest in Distributing or Distributing to a newly formed, wholly of stock that are part of a plan that Controlled that cause section 355(e) to owned corporation solely for stock of includes a distribution that in the apply. such corporation in an exchange to aggregate represent a 50-percent or Special Rules for Gain Recognition which section 351 applied (even if greater interest in a predecessor of section 351 would not have actually Distributing is counted separately from Generally, if a distribution and applied) and then sold the stock of that whether there have been acquisitions of acquisitions that in the aggregate corporation to an unrelated person in stock that are part of a plan that represent a 50-percent or greater interest exchange for cash equal to its fair includes a distribution that in the in a predecessor of Distributing or market value. aggregate represent a 50-percent or Distributing are part of a plan, section greater interest in Distributing. 355(e) requires Distributing to recognize The second rule applies if a Therefore, Distributing may be required the full amount of the gain inherent in distribution and acquisitions of stock to recognize gain by reason of section the Controlled stock on the date of the that in the aggregate represent a 50- 355(e) with respect to a predecessor of distribution under section 355(c)(2) or percent or greater interest in Distributing, but not Distributing, and section 361(c)(2), as applicable. Distributing are part of a plan and the vice versa. However, if a distribution and acquisitions occur in the section 381 Because a predecessor of Distributing acquisitions of stock that in the transaction in which a predecessor of may no longer exist after it combines aggregate represent a 50-percent or Distributing transfers its assets to with Distributing, special rules are greater interest in a predecessor of Distributing. In these cases, the necessary to determine whether there Distributing are part of a plan but there proposed regulations effectively provide has been an acquisition of the are not acquisitions of stock that in the that the amount of gain that Distributing predecessor in connection with and aggregate represent a 50-percent or recognizes will not exceed the amount after the combination transaction. These greater interest in Distributing that are of gain that Distributing would have proposed regulations provide that each part of that plan, and if the gain recognized had it not transferred assets person that owned an interest in inherent in the assets of the predecessor of the predecessor to Controlled and had Distributing immediately before the of Distributing that are contributed to it not acquired any Controlled stock transaction in which the predecessor of Controlled is small relative to the gain from the predecessor. In particular, the Distributing transfers its property to inherent in the Controlled stock on the amount of gain that Distributing Distributing is treated as acquiring stock date of the distribution, it may seem recognizes will not exceed the excess, if in the predecessor of Distributing in the inappropriate to require that any, of the amount described in section combination transaction. For example, Distributing recognize the full amount 355(c)(2) or section 361(c)(2), as suppose D acquires the assets of a of gain inherent in the Controlled stock. applicable, over the amount of gain, if predecessor in a statutory merger under Similarly, if a distribution and any, that Distributing would have been section 368(a)(1)(A) and A, an acquisitions of stock that in the required to recognize if there had been individual, owned stock of D aggregate represent a 50-percent or acquisitions of stock that in the immediately before the merger. A would greater interest in Distributing are part aggregate represent a 50-percent or be treated as acquiring stock of the of a plan but there are not acquisitions greater interest in the predecessor of predecessor. of stock that in the aggregate represent Distributing (but not Distributing) In addition, an acquisition of a 50-percent or greater interest in the involved in the combining transfer that Distributing (or a successor of predecessor of Distributing that are part were part of a plan that includes the Distributing) that occurs after of a plan, and if the excess of the gain distribution, taking into account the Distributing’s combination with a inherent in the Controlled stock on the limitation in the first rule. For example, predecessor will count not only as an date of the distribution over the gain assume that X, a corporation, merges acquisition of Distributing, but also as attributable to the assets of the into Distributing in a statutory merger an acquisition of the predecessor. The predecessor is small relative to the full that qualifies as a reorganization under stock of Distributing (or a successor of amount of gain inherent in the section 368(a)(1)(A). In the merger, Distributing) is treated as the stock of all Controlled stock, it may seem Distributing issues 75 percent of its predecessors of Distributing. Therefore, inappropriate to require that stock to the former shareholders of X. if D acquires the assets of a predecessor Distributing recognize the full amount Distributing then forms Controlled in a statutory merger under section of gain inherent in the Controlled stock. solely with assets acquired from X in 368(a)(1)(A) and, after the merger, A, an Therefore, the proposed regulations the merger and distributes the stock of individual, acquires 5 percent of the provide two rules limiting the amount Controlled pro rata to its shareholders. stock of D, A is treated as acquiring not of gain that Distributing must recognize At the time of the distribution, the basis only stock of D, but also stock of the in these cases. of the Controlled stock is $30 and the predecessor of D. The first rule provides that if a fair market value of that stock is $70. The proposed regulations provide distribution and acquisitions of stock Assume that the distribution and the similar rules for determining whether that in the aggregate represent a 50- former X shareholders’ acquisition of

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stock of Distributing are part of a plan. value of the predecessor’s assets on the regulatory assessment is not required. It Furthermore, assume that, other than date of the distribution for purposes of has also been determined that section the deemed acquisition of stock of X by determining the amount of gain required 553(b) of the Administrative Procedure the pre-merger shareholders of to be recognized when there have been Act (5 U.S.C. chapter 5) does not apply Distributing, there are no other acquisitions of a 50-percent or greater to these regulations, and, because these acquisitions of the stock of X that are interest in the predecessor that are part regulations do not impose a collection part of a plan that includes the of a plan that includes the distribution. of information on small entities, the distribution. By reason of the second Special Rule for Affiliated Groups Regulatory Flexibility Act (5 U.S.C. limitation, Distributing’s gain chapter 6) does not apply. Pursuant to recognized under section 361(c)(2) The proposed regulations include a section 7805(f) of the Internal Revenue would be zero because all of the gain special rule that relates to the Code, this notice of proposed inherent in the Controlled stock at the application of section 355(e)(2)(C). rulemaking will be submitted to the time of the distribution is attributable to Section 355(e)(2)(C) provides that a plan Chief Counsel for Advocacy of the Small assets acquired from X in the merger. (or series of related transactions) will Business Administration for comment In order to ensure that in appropriate not result in stock or securities in the on its impact on small business. cases these limitations do not ultimately controlled corporation not being treated prevent recognition of gain in the full as qualified property for purposes of Comments and Requests for a Public amount described in section 355(c)(2) or section 355(c)(2) or section 361(c)(2) if, Hearing immediately after the completion of 361(c)(2), as applicable, these proposed Before these proposed regulations are such plan or transactions, the regulations provide that if there are adopted as final regulations, distributing corporation and all acquisitions of stock that in the consideration will be given to any controlled corporations are members of aggregate represent a 50-percent or written comments (a signed original and a single affiliated group (as defined in greater interest in more than one eight (8) copies) or electronic comments section 1504 without regard to corporation (for example, two that are submitted timely to the IRS. The predecessors of Distributing) that are subsection (b) thereof). These proposed IRS and Treasury Department pursuant to a plan that includes the regulations provide that, for purposes of specifically request comments on the distribution, Distributing must section 355(e)(2)(C), a predecessor of clarity of the proposed rules and how recognize gain in the amount described Distributing or Controlled is treated as they may be made easier to understand. in section 355(c)(2) or 361(c)(2), as continuing in existence following its All comments will be available for applicable, subject to the limitations transfer of property to Distributing or public inspection and copying. described above, with respect to each Controlled, and Distributing or such corporation. However, because this Controlled is treated as continuing in A public hearing will be scheduled if rule could cause Distributing to existence following a transfer of requested in writing by any person that recognize a total amount of gain in property to a successor. timely submits written comments. If a excess of that amount described in public hearing is scheduled, notice of Request for Comments section 355(c)(2) or 361(c)(2), as the date, time, and place for the public applicable, these regulations include an The IRS and Treasury Department are hearing will be published in the Federal overall limitation on gain recognition. concerned that certain transfers of assets Register. to a partnership or a corporation by That rule provides that the sum of the Drafting Information amounts required to be recognized by Distributing or Controlled may facilitate Distributing under section 355(e) and an acquisition of an interest in The principal author of these the regulations promulgated thereunder Distributing’s or Controlled’s assets that proposed regulations is Krishna P. will not exceed the amount described in is functionally equivalent to an Vallabhaneni of the Office of Associate section 355(c)(2) or section 361(c)(2), as acquisition of Distributing or Chief Counsel (Corporate). However, applicable. Controlled. The IRS and Treasury other personnel from the IRS and As described above, the rule for Department are also concerned that Treasury Department participated in determining whether a corporation is a certain acquisitions by persons their development. predecessor of Distributing references unrelated to Distributing or Controlled the assets of the predecessor at the time of an interest in a corporation or List of Subjects in 26 CFR Part 1 it combines with Distributing while the partnership in which Distributing or Income taxes, Reporting and rule for calculating the limitation on Controlled directly or indirectly owns recordkeeping requirements. gain recognition references the basis and an interest may also be an acquisition value of the predecessor’s assets at the that is functionally equivalent to an Proposed Amendments to the time of the distribution. The IRS and acquisition of Distributing or Regulations Treasury Department believe that Controlled. If such transfers and Accordingly, 26 CFR part 1 is determining whether a corporation is a acquisitions are part of a plan that proposed to be amended as follows: predecessor of Distributing by reference includes the distribution, they could be to its assets at the time it combines with used to circumvent the purposes of PART 1—INCOME TAXES Distributing (and not later) is section 355(e). Accordingly, the IRS and appropriate because, in that transaction, Treasury Department are studying how Paragraph 1. The authority citation the predecessor will likely cease to section 355(e) might apply to such for part 1 is amended by adding an entry exist. However, the division of the transfers and acquisitions. Comments in numerical order to read, in part, as predecessor’s assets does not occur until are requested in this regard. follows: the distribution. In addition, the gain required to be recognized by reason of Special Analyses Authority: 26 U.S.C. 7805 * * * Section 1.355–8 also issued under 26 section 355(e) is measured as of the date It has been determined that this notice U.S.C. 355(e)(5). * * * of the distribution. Therefore, the IRS of proposed rulemaking is not a and Treasury Department believe that it significant regulatory action as defined Par. 2. Section 1.355–8 is added to is appropriate to measure the basis and in Executive Order 12866. Therefore, a read as follows:

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§ 1.355–8 Definition of predecessors and section 381 applies is not also a predecessor of Distributing, the successors and limitations on gain predecessor of Controlled. following rules shall apply. recognition. (4) Determination of predecessor (i) Each person that owned an interest (a) References to a distributing or status—(i) Substitute assets. For in Distributing immediately before the controlled corporation. For purposes of purposes of determining whether a combining transfer involving the section 355(e) and the regulations corporation is a predecessor of predecessor of Distributing shall be promulgated thereunder, except as Distributing, if after the combining treated as acquiring in the combining otherwise provided, any reference to a transfer Distributing transfers any transfer stock representing an interest in distributing corporation (Distributing) or property it received in the combining the predecessor of Distributing. a controlled corporation (Controlled) transfer in a transaction in which gain (ii) If stock of Distributing is acquired shall include a reference to any or loss is not recognized in whole, the after the combining transfer involving predecessor or successor of such property received by Distributing in the predecessor of Distributing, the corporation, as such terms are defined exchange for such property shall be stock of Distributing shall be treated as in this section. treated as transferred to Distributing in the stock of the predecessor of (b) Definition of predecessor—(1) the combining transfer. Distributing. Therefore, an acquisition Predecessor of a distributing (ii) Reorganizations under section of the stock of Distributing that occurs corporation. A predecessor of 368(a)(1)(F). For purposes of after the combining transfer shall be Distributing is a corporation (the first determining whether a corporation is a treated as not only an acquisition of the corporation) that before the distribution predecessor of Distributing or stock of Distributing, but also an transfers property to Distributing in a Controlled, if a corporation engages in a acquisition of the stock of the transaction to which section 381 applies reorganization under section predecessor of Distributing. (the combining transfer), but only if 368(a)(1)(F), then the resulting (2) Deemed acquisitions of a either— corporation shall be treated as the same distributing corporation. If there is a (i) Distributing transfers some but not corporation that engaged in the successor of Distributing, the following all of the property acquired from the reorganization. Therefore, if a rules shall apply. (i) Each person that owned an interest first corporation to Controlled (the corporation (X) transfers property to another corporation (Y) in a in the successor of Distributing separating transfer) and the basis of reorganization under section immediately before the successor such property immediately after the 368(a)(1)(A), and then Y transfers transaction involving the successor of separating transfer is determined in property to Distributing in a Distributing shall be treated as acquiring whole or in part by reference to the reorganization under section in the successor transaction stock basis of the property in the hands of 368(a)(1)(F), Y and Distributing will be representing an interest in Distributing. Distributing immediately before the treated as the same corporation and X (ii) If stock of the successor of separating transfer; or may be a predecessor of Distributing. Distributing is acquired after the (ii) In the combining transfer, some (iii) Multiple predecessors. More than successor transaction, the stock of the but not all of the property transferred to one corporation may be a predecessor of successor of Distributing shall be treated Distributing includes Controlled stock Distributing or Controlled. Therefore, if as stock of Distributing. Therefore, and, after the combining transfer, more than one corporation transfers acquisitions of the stock of a successor Distributing does not transfer all of the property to Distributing or Controlled in of Distributing that occur after the property acquired from the first transactions to which section 381 successor transaction shall be treated as corporation (other than the Controlled applies, each of the transferring acquisitions of the stock of Distributing. stock) to Controlled. corporations may be a predecessor of (3) Deemed acquisitions of a (2) Predecessor of a controlled Distributing or Controlled, respectively. controlled corporation. If there is a corporation. Solely for purposes of (c) Definition of successor—(1) In successor of Controlled, the following paragraphs (b)(1), (e)(2), and (f) of this general. A successor of Distributing or rules shall apply. section, a corporation is a predecessor of Controlled, respectively, is a (i) Each person that owned an interest Controlled if, before the distribution, it corporation to which Distributing or in the successor of Controlled transfers property to Controlled in a Controlled transfers property after the immediately before the successor transaction to which section 381 distribution in a transaction to which transaction involving the successor of applies. Other than for the purposes section 381 applies (a successor Controlled shall be treated as acquiring described in the preceding sentence, no transaction). in the successor transaction stock corporation can be a predecessor of (2) Determination of successor status. representing an interest in Controlled. Controlled. More than one corporation may be a (ii) If stock of the successor of (3) References to a distributing or successor of Distributing or Controlled. Controlled is acquired after the controlled corporation. For purposes of Therefore, if Distributing transfers successor transaction, the stock of the paragraph (b)(1) of this section, a property to another corporation (X) in a successor of Controlled shall be treated reference to Distributing shall not transaction to which section 381 as stock of Controlled. Therefore, include a reference to a predecessor of applies, and X transfers property to acquisitions of the stock of a successor Distributing. Therefore, a corporation another corporation (Y) in a transaction of Controlled that occur after the that transfers property to a predecessor to which section 381 applies, then each successor transaction shall be treated as of Distributing in a transaction to which of X and Y may be a successor of acquisitions of stock of Controlled. section 381 applies is not also a Distributing. In this case, the (4) Separate counting for distributing predecessor of Distributing. For determination of whether Y is a corporations and their predecessors. purposes of paragraph (b)(2) of this successor of Distributing is made after The measurement of whether one or section, a reference to Controlled shall the determination of whether X is a more persons have acquired stock that not include a reference to a predecessor successor of Distributing. in the aggregate represents a 50-percent of Controlled. Therefore, a corporation (d) Special acquisition rules—(1) or greater interest in either a that transfers property to a predecessor Deemed acquisitions of a predecessor of predecessor of Distributing or of Controlled in a transaction to which a distributing corporation. If there is a Distributing that is part of the plan that

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includes the distribution shall be made unrelated person in exchange for cash section. For purposes of this paragraph separately. Therefore, there may be equal to its fair market value. (e)(3), references to Distributing shall acquisitions of stock that in the (ii) Operating rules. For purposes of not include a reference to a predecessor aggregate represent a 50-percent or applying paragraph (e)(2)(i) of this of Distributing. greater interest in a predecessor of section, the following rules shall apply. (4) Overall limitation on gain Distributing that are part of a plan that (A) If before the distribution recognition. The sum of the amounts includes a distribution where there are Distributing transfers any property it required to be recognized by not acquisitions of stock that in the received from the predecessor of Distributing under section 355(e) and aggregate represent a 50-percent or Distributing in the combining transfer in the regulations promulgated thereunder greater interest in Distributing that are a transaction in which gain or loss is not (taking into account paragraphs (e)(2) part of a plan that includes a recognized in whole, the property and (3) of this section) shall not exceed distribution. In addition, there may be received by Distributing in exchange for the amount described in section acquisitions of stock that in the such property shall be treated as 355(c)(2) or section 361(c)(2), as aggregate represent a 50-percent or transferred to Distributing in the applicable. greater interest in Distributing that are combining transfer. (f) Predecessor or successor as a part of a plan that includes a (B) The basis of the property other member of the affiliated group. For distribution where there are not than stock of Controlled treated as purposes of section 355(e)(2)(C), a acquisitions of stock that in the transferred to the newly formed, wholly predecessor of Distributing shall be aggregate represent a 50-percent or owned corporation by the predecessor treated as continuing in existence greater interest in a predecessor of of Distributing shall equal the basis of following the combining transfer to Distributing that are part of a plan that such property in the hands of which section 381 applies described in includes a distribution. Controlled immediately before the paragraph (b)(1) of this section, a (e) Special rules for gain recognition— distribution. predecessor of Controlled shall be (C) Only property (other than stock of (1) In general. If there are acquisitions treated as continuing in existence Controlled) owned by Controlled at the of stock that in the aggregate represent following the transaction to which time of the distribution shall be taken a 50-percent or greater interest in more section 381 applies described in into account in computing the amount than one corporation (for example, two paragraph (b)(2) of this section, and predecessors of Distributing) that are pursuant to paragraph (e)(2)(i) of this section. However, if before the Distributing or Controlled shall be pursuant to a plan that includes the treated as continuing in existence distribution, Distributing must distribution Controlled transfers any property it received in the separating following a successor transaction. recognize gain in the amount described (g) Examples. The following examples in section 355(c)(2) or 361(c)(2), as transfer in a transaction in which gain or loss is not recognized in whole, the illustrate the principles of this section. applicable, with respect to each such Unless otherwise stated, assume corporation, subject to the limitations in property received by Controlled in exchange for such property shall be throughout these examples that paragraphs (e)(2) and (3) of this section Distributing (D) owns all the stock of if applicable. The limitations in treated as transferred to Controlled in the separating transfer. Controlled (C) and that D distributes the paragraphs (e)(2) and (3) of this section stock of C in a distribution to which are applied separately to each such (D) The basis and fair market value of the stock of Controlled treated as section 355 applies, but to which corporation to determine the amount of section 355(d) does not apply. In gain required to be recognized. transferred to the newly formed, wholly addition, assume that X, Y, and Z are Paragraph (e)(4) of this section sets forth owned corporation shall equal the basis individuals, and that D, C, P, Q, and R an overall limitation that is computed and fair market value, respectively, of are corporations and none of them is a taking into account all of the gain such stock immediately before the member of a consolidated group. No recognized by Distributing by reason of combining transfer in which the inference should be drawn from any section 355(e). predecessor of Distributing transferred (2) Acquisition of a predecessor of a such stock to Distributing. example concerning whether any distributing corporation—(i) In general. (3) Acquisitions of a distributing requirements of section 355 other than If a distribution and acquisitions of corporation. If a distribution and those of section 355(e) are satisfied. The stock that in the aggregate represent a acquisitions of stock that in the examples are as follows: 50-percent or greater interest in a aggregate represent a 50-percent or Example 1. Predecessor of distributing—(i) predecessor of Distributing are part of a greater interest in Distributing are part Facts. X owns 100 percent of the stock of P plan, the amount of gain recognized by of a plan and the acquisitions occur in and Y owns 100 percent of the stock of D. Distributing by reason of section 355(e) a combining transfer, the amount of gain P merges into D in a reorganization under as a result of the acquisitions shall not recognized by Distributing by reason of section 368(a)(1)(A). Immediately after the section 355(e) as a result of the merger, X and Y own 10 percent and 90 exceed the amount of gain, if any, that percent, respectively, of the stock of D. D the predecessor of Distributing would acquisitions shall not exceed the excess, then contributes to C one of the assets have recognized if, immediately before if any, of the amount described in acquired from P in the merger. At the time the distribution, the predecessor of section 355(c)(2) or section 361(c)(2), as of the contribution, the asset has a basis of Distributing had transferred the applicable, over the amount of gain, if $40x and a fair market value of $110x. In property that was transferred to any, that Distributing would have been exchange for the asset, D receives additional Controlled in the separating transfer and required to recognize if there had been C stock and $10x. D distributes the stock of stock of Controlled that the predecessor acquisitions of stock that in the C (but not the cash) to X and Y pro rata. The of Distributing transferred to aggregate represent a 50-percent or contribution is described in section Distributing in the combining transfer to greater interest in the predecessor of 368(a)(1)(D) and D recognizes $10x of gain under section 361(b) in the contribution. a newly formed, wholly owned Distributing (but not Distributing) Immediately before the distribution, the asset corporation in exchange solely for stock involved in the combining transfer that contributed to C has a basis of $50x and a of such corporation in an exchange to were part of a plan that includes the fair market value of $110x, and the stock of which section 351 applied and then distribution, taking into account the C held by D has a basis of $100x and a fair sold the stock of that corporation to an limitation in paragraph (e)(2) of this market value of $200x.

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(ii) Analysis. Under paragraph (b)(1) of this representing 90 percent of the voting power fair market value of the R stock is treated as section, P is a predecessor of D because and value of P. its basis and fair market value, respectively, before the distribution P transferred property (iv) If the distribution and Y’s deemed immediately before the P–D merger. to D in a transaction to which section 381 acquisition of a 90-percent interest in P were Therefore, D would recognize $70x of gain. applies, D transferred some but not all of the part of a plan, D would recognize gain in the Example 4. Acquisition of a distributing acquired property to C, and immediately after amount described in section 361(c)(2). corporation. (i) Facts. X owns 100 percent of its transfer to C, the property has a basis Without regard to the limitations in the stock of P and Y owns 100 percent of the determined in whole or in part by reference paragraph (e) of this section, D would be stock of D. P merges into D in a to the basis of the property in the hands of required to recognize $110x of gain. Under reorganization under section 368(a)(1)(A). In D immediately before the transfer to C. paragraph (e)(2) of this section, however, D’s the merger, X acquires 60 percent of the D (iii) Under paragraph (d)(1)(i) of this gain recognized by reason of the acquisition stock. After the merger, therefore, X and Y section, Y is treated as acquiring stock of P would not exceed $55x, the gain P own 60 percent and 40 percent, respectively, representing 90 percent of the voting power would have recognized if, immediately of the stock of D. D then contributes to C, a and value of P. before the distribution, it had transferred the newly formed corporation, some of the assets (iv) If the distribution and Y’s deemed former P property that was transferred by D acquired from P in the merger and one asset acquisition of a 90-percent interest in P were to C and the stock of C acquired from P to that it owned prior to the merger, in part of a plan, D would recognize gain in the a newly formed, wholly owned corporation exchange for C stock in a transfer that amount described in section 361(c)(2). solely for stock of such corporation in an qualifies as a reorganization under section Without regard to the limitations in exchange to which section 351 applies and 368(a)(1)(D). After the contribution, D paragraph (e) of this section, D would be then sold that stock to an unrelated person distributes the C stock to its shareholders pro required to recognize $100x of gain. Under for cash equal to its fair market value. For rata. Immediately before the distribution, the paragraph (e)(2) of this section, however, D’s this purpose, the basis and fair market value contributed asset that D had owned prior to gain recognized by reason of the acquisition of the C stock is treated as its basis and fair the merger has a basis of $3x and a fair of P would not exceed $60x, the gain P market value, respectively, immediately market value of $10x and the contributed would have recognized if, immediately before the merger. Therefore, D would assets acquired from P have an aggregate before the distribution, it had transferred the recognize $55x of gain. basis of $1x and an aggregate value of $30x. former P property transferred by D to C to a Example 3. Predecessor of controlled—(i) Finally, immediately before the distribution, newly formed, wholly owned corporation Facts. X owns 100 percent of the stock of P D’s C stock has a basis of $4x and a fair solely for stock of such corporation in an and P owns various assets including 100 market value of $40x. exchange to which section 351 applied and percent of the stock of R. Y owns 100 percent (ii) Analysis. Under paragraph (b)(1) of this then sold that stock to an unrelated person of the stock of D and D owns 100 percent of section, P is a predecessor of D because for cash equal to its fair market value. the stock of C. P merges into D in a before the distribution P transferred property Therefore, D would recognize $60x of gain. reorganization under section 368(a)(1)(A). to D in a transaction to which section 381 Example 2. Distributing’s predecessor owns Immediately after the merger, X and Y own applies, D transferred some but not all of the controlled stock—(i) Facts. X owns 100 10 percent and 90 percent, respectively, of acquired property to C, and immediately after percent of the stock of P, and Y owns 100 the stock of D. D then causes R to merge into its transfer to C, the property has a basis percent of the stock of D. P owns 35 percent C in a reorganization under section determined in whole or in part by reference of the stock of C with a basis of $40x and a 368(a)(1)(D). At the time of the P–D merger, to the basis of the property in the hands of fair market value of $35x. D owns the the R stock has a basis of $40x and a fair D immediately before the transfer to C. remaining 65 percent of the C stock with a market value of $110x. D distributes the stock (iii) Under paragraph (d)(1)(i) of this basis of $10x and a fair market value of $65x. of C to X and Y pro rata. Immediately before section, Y is treated as acquiring stock P merges into D in a reorganization under the distribution, the stock of C held by D has representing 40 percent of the voting power section 368(a)(1)(A). Immediately after the a basis of $100x and a fair market value of and value of P. There are not acquisitions merger, X and Y own 10 percent and 90 $200x. that in the aggregate represent a 50-percent percent, respectively, of the D stock, and D (ii) Analysis. Under paragraph (b)(2) of this or greater interest in P in the merger that is owns 100 percent of the C stock with a basis section, R is a predecessor of C because pursuant to a plan that includes a of $50x and a fair market value of $100x. D before the distribution R transferred property distribution. However, there is an acquisition then contributes to C one of the assets it to C in a transaction to which section 381 by X of a 60-percent interest in D in the acquired from P in the merger in exchange applies. Under paragraph (b)(1) of this merger. If that acquisition were pursuant to for additional shares of C. The contribution section, P is a predecessor of D because some a plan that includes the distribution, D qualifies as a reorganization under section but not all of the property transferred to D would be required to recognize gain in the 368(a)(1)(D). After the contribution, D includes stock of R, a predecessor of C and, amount described in section 361(c)(2). distributes all of the C stock to X and Y pro after the merger, D does not transfer all of the Without regard to the limitations in rata. Immediately before the distribution, the property acquired from P to C. paragraph (e) of this section, D would be asset contributed to C has a basis of $40x and (iii) Under paragraph (d)(1)(i) of this required to recognize $36x of gain. Under a fair market value of $100x, and the C stock section, Y is treated as acquiring stock paragraph (e)(3) of this section, however, held by D has a basis of $90x and a fair representing 90 percent of the voting power because that acquisition occurred in market value of $200x. and value of P. connection with P’s merger into D, the (ii) Analysis. Under paragraph (b)(1) of this (iv) If the distribution and Y’s deemed amount of gain recognized by D would not section, P is a predecessor of D because acquisition of a 90-percent interest in P were exceed $7x, the excess of the gain described before the distribution P transferred property part of a plan, D would recognize gain in the in section 361(c)(2) ($36x) over the gain that to D in a transaction to which section 381 amount described in section 361(c)(2). D would have been required to recognize if applies, D transferred some but not all of the Without regard to the limitations in there had been an acquisition of stock acquired property to C, and immediately after paragraph (e) of this section, D would be representing a 50-percent or greater interest its transfer to C, the property has a basis required to recognize $100x of gain. Under in P (but not D) that was part of a plan determined in whole or in part by reference paragraph (e)(2) of this section, however, D’s involving the distribution ($29x). Therefore, to the basis of the property in the hands of gain recognized by reason of the acquisition D would recognize $7x of gain. D immediately before the transfer to C. P is of P would not exceed $70x, the gain P Example 5. Successor of a controlled also a predecessor of D under paragraph would have recognized if, immediately corporation—(i) Facts. X owns 100 percent of (b)(1) of this section because some but not all before the distribution, it had transferred the the stock of each of D and R. D owns 100 of the property transferred to D includes C stock of R to a newly formed, wholly owned percent of the C stock. D’s C stock has a basis stock and, after the merger, D does not corporation solely for stock of such of $10x and a fair market value of $30x. D transfer all of the property acquired from P corporation in an exchange to which section distributes all of its C stock to X. Immediately to C. 351 applied and then sold that stock to an after the distribution, C merges into R in a (iii) Under paragraph (d)(1)(i) of this unrelated person for cash equal to its fair reorganization under section 368(a)(1)(D). section, Y is treated as acquiring stock market value. For this purpose, the basis and Immediately after the merger, X owns all of

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the R stock. Subsequently, Z purchases 60 detailed instructions in the ADDRESSES ACTION: Proposed rule; withdrawal. percent of the stock of R from X. section of the Direct Final Rule which (ii) Analysis. Under paragraph (c) of this is located in the Rules section of this SUMMARY: The Bureau of Land section, R is a successor of C because after Federal Register. To submit comments, Management (BLM) is withdrawing the the distribution C transfers property to R in proposed rule that would have revised a transaction to which section 381 applies. please follow the detailed instructions described in the Direct Final Rule, the regulations for Indian allotments to Accordingly, Z acquired an interest in a reduce the regulatory burden imposed successor of C. In addition, under paragraph SUPPLEMENTARY INFORMATION section, (d)(3)(ii) of this section, the stock of R is Part I, General Information. on the public, to streamline and clarify treated as stock of C such that Z is treated Copies of the State’s request and other the existing regulations and to remove as acquiring 60 percent of the voting power information supporting this action are redundant and unnecessary and value of C. available for inspection during normal requirements. The proposal was (iii) If the distribution and Z’s acquisition business hours at the following location: published in the Federal Register on of a 60-percent interest in R were part of a October 16, 1996. We reopened the plan, D would be required to recognize gain EPA, Office of Air, Waste, and Toxics (AWT–107), 1200 Sixth Avenue, Seattle, comment period in the Federal Register in the amount of $20x, the amount described on July 15, 1999 for 60 days. in section 355(c)(2). Washington 98101. (h) Effective date. This section applies to FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: You distributions occurring after the date these Wayne Elson, Office of Air, Waste, and may contact Jeff Holdren, Lands and regulations are published as final regulations Toxics (AWT–107), EPA, Seattle, Realty Group, on (202) 452–7779 in the Federal Register. Washington 98101, (206) 553–1463. (Commercial or FTS). Persons who use a telecommunications device for the Mark E. Matthews, SUPPLEMENTARY INFORMATION: In the deaf (TDD) may call the Federal Deputy Commissioner for Services and Final Rules section of this Federal Information Relay Service (FIRS) at 1– Enforcement. Register, the EPA is approving the 800–877–8339, 24 hours a day, seven [FR Doc. 04–25649 Filed 11–19–04; 8:45 am] State’s SIP submittal as a direct final days a week, except holidays, to contact BILLING CODE 4830–01–P rule without prior proposal because the Mr. Holdren. Agency views this as a noncontroversial submittal and anticipates no adverse SUPPLEMENTARY INFORMATION: The BLM ENVIRONMENTAL PROTECTION comments. If no adverse comments are published the proposed rule in the AGENCY received in response to this action, no Federal Register on October 16, 1996 further activity is contemplated. (61 FR 53887). We reopened the 40 CFR Part 52 If the EPA receives adverse comment period in the Federal Register on July 15, 1999 (64 FR 38172) for 60- [OR–04–002; FRL–7835–3] comments, the direct final rule will be withdrawn and all public comments days because we inadvertently omitted the information collection requirements. Approval and Promulgation of State received will be addressed in a We received three comments. The BLM Implementation Plans; Oregon subsequent final rule based on this proposed rule. The EPA will not decided to withdraw the proposed rule AGENCY: Environmental Protection institute a second comment period. Any and will take no further action on this Agency. parties interested in commenting on this proposal regarding Indian allotments. ACTION: Proposed rule. action should do so at this time. Please Dated: September 24, 2004. note that if we receive adverse comment Chad Calvert, SUMMARY: The Environmental Protection on an amendment, paragraph, or section Agency (EPA) proposes to approve Acting Assistant Secretary, Land and of this rule and if that provision may be numerous revisions to the Oregon State Minerals Management. severed from the remainder of the rule, Implementation Plan (SIP) in the State [FR Doc. 04–25766 Filed 11–19–04; 8:45 am] we may adopt as final those provisions of Oregon Administrative Rules (OAR) BILLING CODE 4310–84–P of the rule that are not the subject of an relating to the inspection and adverse comment. maintenance (I/M) of motor vehicles. For additional information, see the These revisions were submitted to EPA FEDERAL COMMUNICATIONS Direct Final rule which is located in the by the Director of the Oregon COMMISSION Rules section of this Federal Register. Department of Environmental Quality (ODEQ) on November 5, 1999, Dated: October 26, 2004. 47 CFR Parts 2, 22, 24, 74, 78, and 90 September 15, 2000, November 27, Julie M. Hagensen, [WT Docket No. 02–55; FCC 04–253] 2000, January 10, 2003, and April 22, Acting Regional Administrator, Region 10. 2004. [FR Doc. 04–25628 Filed 11–19–04; 8:45 am] The 800 MHz Public Safety Interference The revisions were submitted in BILLING CODE 6560–50–P Proceeding; Request for Comments on accordance with the requirements of Ex Parte Presentations and Extension section 110 of the Clean Air Act of Deadlines (hereinafter CAA or Act). DEPARTMENT OF THE INTERIOR AGENCY: Federal Communications DATES: Written comments must be Commission. received on or before December 22, Bureau of Land Management 2004. ACTION: Request for comments. ADDRESSES: Comments may be mailed 43 CFR Part 2530 SUMMARY: Subsequent to release of the to: Wayne Elson, Environmental [WO–350–1430–PF–24 1A] 800 MHz Report and Order in the Public Protection Agency, Office of Air, Waste, Safety Interference Proceeding on and Toxics (OAWT–107), EPA, 1200 RIN 1004–AB10 August 6, 2004, Nextel Sixth Avenue, Seattle, Washington Indian Allotments Communications, Inc. and others filed 98101. Comments may also be ex parte presentations in the rulemaking submitted electronically or through AGENCY: Bureau of Land Management, proceeding. Nextel sought clarification hand delivery/courier. Please follow the Interior. and/or modification of certain aspects of

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the Commission’s final rules released on important to avoid uncertainty in the docket or rulemaking number August 6, 2004, and published in the implementation of the 800 MHz band referenced in the caption. In completing Rules and Regulations section in this reconfiguration process and to avoid the transmittal screen, commenters issue. Nextel also filed a supplementary further delaying resolution of the should include their full name, U.S. ex parte submission providing problems of unacceptable interference Postal Service mailing address, and the additional detail on the issues it raised affecting public safety licensees in this applicable docket or rulemaking in its September 16, 2004, ex parte band. In addition, in order to avoid number. Commenters may also submit presentation. Other parties have filed ex uncertainty for Nextel and other 800 an electronic comment by Internet e- parte presentations in response to MHz licensees, we believe it is mail. To get filing instructions for e-mail Nextel’s ex parte filings. The appropriate to provide certain parties comments, commenters should send an Commission requests comments limited additional time to comply with certain e-mail to [email protected] and should to these filings. benchmarks set forth in the 800 MHz include the following words in the body DATES: Submit comments on or before Report and Order, which is published in of the message, ‘‘get form .’’ Commenters will receive a not requesting reply comments. issue. Additional information regarding sample form and directions in reply. ADDRESSES: All filings must be this deadline extension is published in 6. Parties that choose to file by paper addressed to the Commission’s the Rules and Regulations section of this must file an original and four copies of Secretary, Marlene H. Dortch, Office of issue. the Secretary, Federal Communications 3. This matter shall be treated as a each filing. If more than one docket or Commission, 445 12th Street, SW., Suite ‘‘permit-but-disclose’’ proceeding in rulemaking number appears in the TW–A325, Washington, DC 20554. One accordance with the Commission’s ex caption of this proceeding, commenters (1) courtesy copy must be delivered to parte rules, 47 CFR 1.1200, 1.1206. must submit two additional copies for Roberto Mussenden, Esq. at Federal Persons making oral ex parte each additional docket or rulemaking Communications Commission, Wireless presentations are reminded that number. Telecommunications Bureau, Public memoranda summarizing the 7. Commenters may send filings by Safety and Critical Infrastructure presentations must contain summaries hand or messenger delivery, by Division, 445 12th Street, SW., Suite 5– of the substance of the presentations commercial overnight courier, or by and not merely a listing of the subjects C140, Washington, DC 20554, or via e- first-class or overnight U.S. Postal discussed. More than a one or two mail, [email protected], and Service mail (although the Commission sentence description of the views and one (1) copy must be sent to Best Copy continues to experience delays in and Printing, Inc., Portals II, 445 12th arguments presented generally is required. See 47 CFR 1.1206(b). Other receiving U.S. Postal Service mail). The Street, SW., Room CY–B402, Commission’s contractor, Natek, Inc., Washington, DC 20554, telephone 1– rules pertaining to oral and written ex parte presentations in permit-but- will receive hand-delivered or 800–378–3160, or via Web, http:// messenger-delivered paper filings for www.bcpiweb.com. disclose proceedings are set forth in section 1.1206(b) of the Commission’s the Commission’s Secretary at 236 FOR FURTHER INFORMATION CONTACT: rules, 47 CFR 1.1206(b). Massachusetts Avenue, NE., Suite 110, Roberto Mussenden, Esq., Public Safety 4. Interested parties may view the Washington, DC 20002. The filing hours and Critical Infrastructure Division, referenced ex parte filings on the at this location are 8 a.m. to 7 p.m. Wireless Telecommunications Bureau at Commission’s Electronic Comment Commenters must bind all hand (202) 418–0680. Filing System (ECFS) using the deliveries together with rubber bands or SUPPLEMENTARY INFORMATION: This is a following steps: (i) Access ECFS at fasteners and must dispose of any summary of a Public Notice released on http://www.fcc.gov/e-file/ecfs.html; (ii) envelopes before entering the building. October 22, 2004 by the Federal in the introductory screen, click on This facility is the only location where Communications Commission ‘‘Search for Filed Comments’; (iii) in the the Commission’s Secretary will accept requesting comments on certain ex parte ‘‘Proceeding’’ box, enter ‘‘02–55’’; (iv) hand-delivered or messenger-delivered submissions filed subsequent to release check the box marked ‘‘Search by Date paper filings. Commenters must send of said Report and Order and extending Range; (v) in the ‘‘Date received/ commercial overnight mail (other than certain deadlines set forth in the 800 adopted’’ block, in the ‘‘From’’ column, U.S. Postal Service Express Mail and MHz Report and Order. enter 07/08/2004; (vi) in the ‘‘To’’ Priority Mail) to 9300 East Hampton 1. In order to develop a full and column enter the date this notice is Drive, Capitol Heights, MD 20743. complete record and to further the published in the Federal Register in the Commenters should address U.S. Postal effective implementation of the 800 format MM/DD/YYYY. Service first-class mail, Express Mail, MHz band reconfiguration process, the 5. Commenters may file comments and Priority Mail to 445 12th Street, Commission seeks expedited comment using the Commission’s Electronic SW., Washington, DC 20554. on the issues raised in certain ex parte Comment Filing System (ECFS) or by presentations submitted after release of filing paper copies. See Electronic Filing 8. Filings and comments are also the 800 MHz Report and Order on of Documents in Rulemaking available for public inspection and August 6, 2004. Said issues include the Proceedings, 63 FR 24121 (1998). copying during regular business hours mechanics of the relocation process, Commenters filing through the ECFS at the FCC Reference Information valuation of the spectrum, and can be sent as an electronic file via the Center, Portals II, 445 12th Street, SW., interference issues. The Commission is Internet to http://www.fcc.gov/e-file/ Room CY–A257, Washington, DC 20554. not accepting comment at this time on ecfs.html. Generally, commenters must They may also be purchased from the filings that address the freeze on 900 submit only one copy of an electronic Commission’s duplicating contractor, MHz applications. The Commission is submission. If multiple docket or Best Copy and Printing, Inc., Portals II, waiving the reply comment cycle rulemaking numbers appear in the 445 12th Street, SW., Room CY–B402, required pursuant to 47 CFR 1.415(c) for caption of this proceeding, however, Washington, DC 20554, telephone 1– good cause, because expedited commenters must transmit one 800–378–3160, or via Web, http:// consideration of these issues is electronic copy of the comments to each www.bcpiweb.com.

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Federal Communications Commission. proposed reference coordinates for For the reasons discussed in the D’wana R. Terry, Channel 276A at Georgetown are 38– preamble, the Federal Communications Chief of Staff, Wireless Telecommunications 52–14 NL and 83–45–55 WL. Commission proposes to amend 47 CFR Bureau, Federal Communications DATES: Comments must be filed on or part 73 as follows: Commission. before December 27, 2004, and reply PART 73—RADIO BROADCAST [FR Doc. 04–25261 Filed 11–19–04; 8:45 am] comments on or before January 11, SERVICES BILLING CODE 6712–01–P 2005. ADDRESSES: Federal Communications 1. The authority citation for part 73 continues to read as follows: FEDERAL COMMUNICATIONS Commission, 445 Twelfth Street, SW., COMMISSION Washington, DC 20554. In addition to Authority: 47 U.S.C. 154, 303, 334 and 336. filing comments with the FCC, 47 CFR Part 73 interested parties should serve the § 73.202 [Amended] petitioner, his counsel, or consultant, as 2. Section 73.202(b), the Table of FM [DA 04–3513; MB Docket No. 04–411, RM– Allotments under Kentucky, is amended 11096] follows: Mark N. Lipp, Esq., Counsel, Richard L. Plessinger, Sr., Scott by adding Salt Lick, Channel 249A. Radio Broadcasting Services; Woodworth Vinson & Elkins, LLP, 1455 3. Section 73.202(b), the Table of FM Georgetown, Mason, and Oxford, OH, Pennsylvania Avenue, NW., Suite 600, Allotments under Ohio, is amended by Salt Lick, KY and West Union, OH Washington, DC 20004, Harry C. Martin, removing Channel 249A and by adding Esq., Counsel, Balogh Broadcasting Channel 276A at Georgetown, by adding AGENCY: Federal Communications Company, Inc., Fletcher Heald & Mason, Channel 249A, by removing Commission. Hildreth , PLC, 1300 North 17th Street, Oxford, Channel 249A, by removing ACTION: Proposed rule. 11th Floor, Arlington, VA 22209, Coe West Union, Channel 276A. W. Ramsey, Esq., Counsel, Federal Communications Commission. SUMMARY: The Audio Division requests Dreamcatcher Communications, Inc., comment on a petition jointly filed by John A. Karousos, Brooks Pierce McLendon Humphrey & Balogh Broadcasting Company, Inc., Assistant Chief, Audio Division, Media Leonard, LLP, P.O. Box 1800, Raleigh, licensee of Station WOXY(FM), Channel Bureau. NC 27602. 249A, Oxford, Ohio, Richard L. [FR Doc. 04–25807 Filed 11–19–04; 8:45 am] Plessinger, Sr., licensee of Station FOR FURTHER INFORMATION CONTACT: BILLING CODE 6712–01–P WAXZ(FM), Channel 249A, Rolanda F. Smith, Media Bureau, (202) Georgetown, Ohio, and Dreamcatcher 418–2180. Communications, Inc., licensee of SUPPLEMENTARY INFORMATION: This is a FEDERAL COMMUNICATIONS Station WRAC(FM), Channel 276A, synopsis of the Commission’s Notice of COMMISSION West Union, Ohio requesting the Proposed Rule Making, MB Docket No. 47 CFR Part 73 reallotment of Channel 249A from 04–411, adopted November 3, 2004, and Oxford to Mason, Ohio, as its first local released November 5, 2004. The full text [DA 04–3512; MB Docket No. 04–407, RM– service and modification of the Station of this Commission decision is available 11106; MB Docket No. 04–408, RM–11107; WOXY(FM) license, reallotment of for inspection and copying during MB Docket No. 04–409, RM–11108; MB Channel 249A from Georgetown, Ohio regular business hours at the FCC’s Docket No. 04–410, RM–11109] to Salt Lick, Kentucky, as its first local Reference Information Center, Portals II, Radio Broadcasting Services; Bertram, service and modification of the Station 445 Twelfth Street, SW., Room CY– TX; Hawley, TX; Port Norris, NJ; WAXZ(FM) license, and reallotment of A257, Washington, DC 20554. The Woodson, TX Channel 276A from West Union to complete text of this decision may also Georgetown, Ohio to prevent removal of be purchased from the Commission’s AGENCY: Federal Communications sole existing local service and duplicating contractor, Best Copy and Commission. modification of the Station WRAC(FM) Printing, Inc., 445 12th Street, SW., ACTION: Proposed rule. license. Channel 249A can be allotted to Room CY–B402, Washington, DC, Mason in compliance with the 20054, telephone 1–800–378–3160 or SUMMARY: This document proposes four Commission’s minimum distance http://www.BCPIWEB.com. new FM broadcast allotments in separation requirements with a site Provisions of the Regulatory Bertram, Texas; Hawley, Texas; Port restriction of 9.4 kilometers (5.8 miles) Flexibility Act of 1980 do not apply to Norris, New Jersey; Woodson, Texas. east of Mason. The proposed reference this proceeding. The Audio Division, Media Bureau, coordinates for Channel 249A at Mason Members of the public should note requests comment on a petition filed by are 39–20–57 NL and 84–12–08 WL. that from the time a Notice of Proposed Charles Crawford, proposing the Channel 249A can also be allotted to Rule Making is issued until the matter allotment of Channel 284A at Bertram, Salt Lick in compliance with the is no longer subject to Commission Texas, as the community’s first local Commission’s minimum distance consideration or court review, all ex aural transmission service. Channel separation requirements with a site parte contacts are prohibited in 284A can be allotted to Bertram in restriction of 6.6 kilometers (4.1 miles) Commission proceedings, such as this compliance with the Commission’s northeast of Salt Lick. The proposed one, which involve channel allotments. minimum distance separation reference coordinates for Channel 249A See 47 CFR 1.1204(b) for rules requirements with a site restriction of at Salt Lick are 38–10–15 NL and 83– governing permissible ex parte contact. 11.7 kilometers (7.2 miles) north of the 34–31 WL. Channel 276A can also be For information regarding proper community. The reference coordinates allotted to Georgetown in compliance filing procedures for comments, see 47 for Channel 284A at Bertram are 30–50– with the Commission’s minimum CFR 1.415 and 1.420. 26 NL and 98–05–45 WL. See distance separation requirements with a SUPPLEMENTARY INFORMATION, infra. List of Subjects in 47 CFR Part 73 site restriction of 12.1 kilometers (7.5 DATES: Comments must be filed on or miles) east of Georgetown. The Radio, Radio broadcasting. before December 27, 2004, and reply

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comments on or before January 11, be allotted to Woodson in compliance SUMMARY: DoD is proposing to amend 2005. with the Commission’s minimum the Defense Federal Acquisition ADDRESSES: Federal Communications distance separation requirements Regulation Supplement (DFARS) to Commission, 445 Twelfth Street, SW., without a site restriction. The reference update text pertaining to the use of basic Washington, DC 20554. In addition to coordinates for Channel 298A at agreements in the acquisition of filing comments with the FCC, Woodson are 33–00–53 NL and 99–03– telecommunications services. This interested parties should serve the 14 WL. proposed rule is a result of a petitioner, his counsel, or consultant, as Provisions of the Regulatory transformation initiative undertaken by follows: Charles Crawford, 4553 Flexibility Act of 1980 do not apply to DoD to dramatically change the purpose Bordeaux Avenue, Dallas, Texas 75205; this proceeding. and content of the DFARS. Members of the public should note Dana J. Puopolo, 2134 Oak Street, Unit DATES: Comments on the proposed rule that from the time a Notice of Proposed C, Santa Monica, California 90405. should be submitted in writing to the Rule Making is issued until the matter address shown below on or before FOR FURTHER INFORMATION CONTACT: is no longer subject to Commission Victoria M. McCauley, Media Bureau, January 21, 2005, to be considered in consideration or court review, all ex the formation of the final rule. (202) 418–2180. parte contacts are prohibited in ADDRESSES: SUPPLEMENTARY INFORMATION: This is a Commission proceedings such as this You may submit comments, synopsis of the Commission’s Notice of one, which involve channel allotments. identified by DFARS Case 2003-D056, Proposed Rule Making, MB Docket Nos. using any of the following methods: See 47 CFR 1.1204(b) for rules • 04–407, 04–408, 04–409, 04–410, governing permissible ex parte contact. Federal eRulemaking Portal: http:// adopted November 3, 2004, and released For information regarding proper www.regulations.gov. Follow the November 5, 2004. The full text of this instructions for submitting comments. filing procedures for comments, see 47 • Commission document is available for CFR 1.415 and 1.420. Defense Acquisition Regulations inspection and copying during regular Web site: http://emissary.acq.osd.mil/ business hours at the FCC’s Reference List of Subjects in 47 CFR Part 73 dar/dfars.nsf/pubcomm. Follow the Radio, Radio broadcasting. instructions for submitting comments. Information Center, Portals II, 445 • Twelfth Street, SW., Room CY–A257, For the reasons discussed in the E-mail: [email protected]. Include Washington, DC 20554. The complete preamble, the Federal Communications DFARS Case 2003–D056 in the subject text of this decision may also be Commission proposes to amend 47 CFR line of the message. part 73 as follows: • Fax: (703) 602–0350. purchased from the Commission’s • duplicating contractor, Best Copy and Mail: Defense Acquisition Printing, Inc., 445 12th Street, SW., PART 73—RADIO BROADCAST Regulations Council, Attn: Ms. Michele Room CY–B402, Washington, DC 20054, SERVICES Peterson, OUSD(AT&L)DPAP(DAR), telephone 1–800–378–3160 or http:// IMD 3C132, 3062 Defense Pentagon, 1. The authority citation for part 73 Washington, DC 20301–3062. www.BCPIWEB.com. continues to read as follows: • The Audio Division requests Hand Delivery/Courier: Defense Authority: 47 U.S.C. 154, 303, 334 and 336. comments on a petition filed by Charles Acquisition Regulations Council, Crystal Square 4, Suite 200A, 241 18th Crawford, proposing the allotment of § 73.202 [Amended] Channel 269A at Hawley, Texas, as the Street, Arlington, VA 22202–3402. 2. Section 73.202(b), the Table of FM All comments received will be posted community’s first local aural Allotments under Texas is amended by to http://emissary.acq.osd.mil/dar/ transmission service and modify the site adding Bertram, Channel 284A, by dfars.nsf. for vacant Channel 270C1 at Munday, adding Hawley, Channel 269A, and by Texas. Channel 269A can be allotted at adding Woodson, Channel 298A. FOR FURTHER INFORMATION CONTACT: Ms. Hawley at a site 9.8 kilometers (6.1 3. Section 73.202(b), the Table of FM Michele Peterson, (703) 602–0311. miles) southeast of the community. The Allotments under New Jersey, is SUPPLEMENTARY INFORMATION: reference coordinates for Channel 296A amended by adding Port Norris, A. Background at Hawley are 32–32–30 NL and 99–45– Channel 299A. DFARS Transformation is a major 00 WL, and the reference coordinates for Federal Communications Commission. Channel 270C1 at Munday are 33–44–53 DoD initiative to dramatically change John A. Karousos, NL and 99–42–14 WL. the purpose and content of the DFARS. The Audio Division requests Assistant Chief, Audio Division, Media The objective is to improve the Bureau. comments on a petition filed by Dana efficiency and effectiveness of the Puopolo, proposing the allotment of [FR Doc. 04–25808 Filed 11–19–04; 8:45 am] acquisition process, while allowing the Channel 299A at Port Norris, New BILLING CODE 6712–01–P acquisition workforce the flexibility to Jersey, as the community’s first local innovate. The transformed DFARS will aural transmission service. Channel contain only requirements of law, DoD- 299A can be allotted to Port Norris in DEPARTMENT OF DEFENSE wide policies, delegations of FAR compliance with the Commission’s authorities, deviations from FAR 48 CFR Part 239 minimum distance separation requirements, and policies/procedures requirements without a site restriction. [DFARS Case 2003–D056] that have a significant effect beyond the The reference coordinates for Channel internal operating procedures of DoD or 299A at Port Norris are 39–14–47 NL Defense Federal Acquisition a significant cost or administrative and 75–02–04 WL. Regulation Supplement; Basic impact on contractors or offerors. The Audio Division requests Agreements for Telecommunications Additional information on the DFARS comments on a petition filed by Charles Services Transformation initiative is available at Crawford proposing the allotment of AGENCY: Department of Defense (DoD). http://www.acq.osd.mil/dpap/dfars/ Channel 298A at Woodson, Texas, as transf.htm. ACTION: Proposed rule with request for the community’s first local aural This proposed rule is a result of the comments. transmission service. Channel 298A can DFARS Transformation initiative. The

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rule deletes procedures at DFARS method, follow the procedures at PGI A. Background 239.7407–1 and 239.7407–2 regarding 239.7407. the use of basic agreements and DFARS Transformation is a major communication service authorizations 239.7407–1 and 239.7407–2 [Removed] DoD initiative to dramatically change for the acquisition of 3. Sections 239.7407–1 and 239.7407– the purpose and content of the DFARS. telecommunications services. Text on 2 are removed. The objective is to improve the this subject will be relocated to the new [FR Doc. 04–25812 Filed 11–19–04; 8:45 am] efficiency and effectiveness of the DFARS companion resource, BILLING CODE 5001–08–P acquisition process, while allowing the Procedures, Guidance, and Information acquisition workforce the flexibility to (PGI), available at http:// innovate. The transformed DFARS will www.acq.osd.mil/dpap/dars/index.htm. DEPARTMENT OF DEFENSE contain only requirements of law, DoD- This rule was not subject to Office of wide policies, delegations of FAR Management and Budget review under 48 CFR Part 239 authorities, deviations from FAR Executive Order 12866, dated [DFARS Case 2003–D054] requirements, and policies/procedures September 30, 1993. that have a significant effect beyond the Defense Federal Acquisition B. Regulatory Flexibility Act internal operating procedures of DoD or Regulation Supplement; Information a significant cost or administrative DoD does not expect this rule to have Technology Equipment—Screening of impact on contractors or offerors. a significant economic impact on a Government Inventory Additional information on the DFARS substantial number of small entities Transformation initiative is available at AGENCY: Department of Defense (DoD). within the meaning of the Regulatory http://www.acq.osd.mil/dpap/dfars/ Flexibility Act, 5 U.S.C. 601, et seq., ACTION: Proposed rule with request for transf.htm. because the rule addresses procedural comments. matters only, and makes no significant This proposed rule is a result of the SUMMARY: change to contracting policy. Therefore, DoD is proposing to amend DFARS Transformation initiative. The DoD has not performed an initial the Defense Federal Acquisition rule deletes obsolete procedures for regulatory flexibility analysis. DoD Regulation Supplement (DFARS) to screening of Government inventory invites comments from small businesses delete obsolete procedures for screening before authorizing a contractor to and other interested parties. DoD also of Government inventory before purchase information technology will consider comments from small authorizing a contractor to purchase equipment. DoD now manages entities concerning the affected DFARS information technology equipment. This information technology equipment in subpart in accordance with 5 U.S.C. proposed rule is a result of a the same manner as other Government 610. Such comments should be transformation initiative undertaken by property, in accordance with FAR part submitted separately and should cite DoD to dramatically change the purpose 45 and DFARS part 245. and content of the DFARS. DFARS Case 2003-D056. This rule was not subject to Office of DATES: Comments on the proposed rule C. Paperwork Reduction Act Management and Budget review under should be submitted in writing to the Executive Order 12866, dated The Paperwork Reduction Act does address shown below on or before September 30, 1993. not apply because the rule does not January 21, 2005. impose any information collection ADDRESSES: You may submit comments, B. Regulatory Flexibility Act requirements that require the approval identified by DFARS Case 2003–D054, DoD does not expect this rule to have of the Office of Management and Budget using any of the following methods: a significant economic impact on a under 44 U.S.C. 3501, et seq. • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the substantial number of small entities List of Subjects in 48 CFR Part 239 instructions for submitting comments. within the meaning of the Regulatory Government procurement. • Defense Acquisition Regulations Flexibility Act, 5 U.S.C. 601, et seq., Web Site: http://emissary.acq.osd.mil/ because the proposed DFARS changes Michele P. Peterson, dar/dfars.nsf/pubcomm. Follow the are limited to deletion of obsolete Executive Editor, Defense Acquisition instructions for submitting comments. procedures for screening of Government Regulations Council. • E-mail: [email protected]. Include inventory. Therefore, DoD has not Therefore, DoD proposes to amend 48 DFARS Case 2003-D054 in the subject performed an initial regulatory CFR part 239 as follows: line of the message. flexibility analysis. DoD invites 1. The authority citation for 48 CFR • Fax: (703) 602–0350. comments from small businesses and part 239 continues to read as follows: • Mail: Defense Acquisition other interested parties. DoD also will Authority: 41 U.S.C. 421 and 48 CFR Regulations Council, Attn: Ms. Michele consider comments from small entities Chapter 1. Peterson, OUSD(AT&L)DPAP(DAR), concerning the affected DFARS subpart IMD 3C132, 3062 Defense Pentagon, in accordance with 5 U.S.C. 610. Such PART 239—ACQUISITION OF Washington, DC 20301–3062. comments should be submitted INFORMATION TECHNOLOGY • Hand Delivery/Courier: Defense separately and should cite DFARS Case Acquisition Regulations Council, 2003–D054. 2. Section 239.7407 is added to read Crystal Square 4, Suite 200A, 241 18th as follows: Street, Arlington, VA 22202–3402. C. Paperwork Reduction Act 239.7407 Type of contract. All comments received will be posted The Paperwork Reduction Act does to http://emissary.acq.osd.mil/dar/ When acquiring telecommunications not apply because the rule does not dfars.nsf. services, the contracting officer may use impose any information collection a basic agreement (see FAR 16.702) in FOR FURTHER INFORMATION CONTACT: Ms. requirements that require the approval conjunction with communication Michele Peterson, (703) 602–0311. of the Office of Management and Budget service authorizations. When using this SUPPLEMENTARY INFORMATION: under 44 U.S.C. 3501, et seq.

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List of Subjects in 48 CFR Part 239 Peterson, OUSD (AT&L) DPAP (DAR), within the meaning of the Regulatory Government procurement. IMD 3C132, 3062 Defense Pentagon, Flexibility Act, 5 U.S.C. 601, et seq., Washington, DC 20301–3062. because the proposed DFARS changes Michele P. Peterson, • Hand Delivery/Courier: Defense reflect current business practices for the Executive Editor, Defense Acquisition Acquisition Regulations Council, acquisition of telecommunications Regulations Council. Crystal Square 4, Suite 200A, 241 18th services. Therefore, DoD has not Therefore, DoD proposes to amend 48 Street, Arlington, VA 22202–3402. performed an initial regulatory CFR part 239 as follows: All comments received will be posted flexibility analysis. DoD invites 1. The authority citation for 48 CFR to http://emissary.acq.osd.mil/dar/ comments from small businesses and part 239 continues to read as follows: dfars.nsf. other interested parties. DoD also will Authority: 41 U.S.C. 421 and 48 CFR FOR FURTHER INFORMATION CONTACT: Ms. consider comments from small entities Chapter 1. Michele Peterson, (703) 602–0311. concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such SUPPLEMENTARY INFORMATION: PART 239—ACQUISITION OF comments should be submitted INFORMATION TECHNOLOGY A. Background separately and should cite DFARS Case DFARS Transformation is a major 2003–D053. Subpart 239.73—[Removed and DoD initiative to dramatically change Reserved] C. Paperwork Reduction Act the purpose and content of the DFARS. The Paperwork Reduction Act does The objective is to improve the 2. Subpart 239.73 is removed and not apply because the rule does not efficiency and effectiveness of the reserved. impose any information collection acquisition process, while allowing the [FR Doc. 04–25811 Filed 11–19–04; 8:45 am] requirements that require the approval acquisition workforce the flexibility to BILLING CODE 5001–08–P of the Office of Management and Budget innovate. The transformed DFARS will under 44 U.S.C. 3501, et seq. contain only requirements of law, DoD- DEPARTMENT OF DEFENSE wide policies, delegations of FAR List of Subjects in 48 CFR Parts 239 and authorities, deviations from FAR 252 48 CFR Parts 239 and 252 requirements, and policies/procedures Government procurement. [DFARS Case 2003–D053] that have a significant effect beyond the internal operating procedures of DoD or Michele P. Peterson, Defense Federal Acquisition a significant cost or administrative Executive Editor, Defense Acquisition Regulation Supplement; Update of impact on contractors or offerors. Regulations Council. Clauses for Telecommunications Additional information on the DFARS Therefore, DoD proposes to amend 48 Services Transformation initiative is available at CFR parts 239 and 252 as follows: http://www.acq.osd.mil/dpap/dfars/ 1. The authority citation for 48 CFR AGENCY: Department of Defense (DoD). transf.htm. parts 239 and 252 continues to read as ACTION: Proposed rule with request for This proposed rule is a result of the follows: comments. DFARS Transformation initiative. The Authority: 41 U.S.C. 421 and 48 CFR proposed changes include— chapter 1. SUMMARY: DoD is proposing to amend • Deletion of an obsolete clause at the Defense Federal Acquisition DFARS 252.239–7003, Facilities and PART 239—ACQUISITION OF Regulation Supplement (DFARS) to Services to be Furnished—Common INFORMATION TECHNOLOGY update clauses used in contracts for Carriers. telecommunications services. This • Expansion of the applicability of 239.7406 [Amended] proposed rule is a result of a the clauses at DFARS 252.239–7004, 2. Section 239.7406 is amended in transformation initiative undertaken by Orders for Facilities and Services; paragraph (c)(6) by removing ‘‘— DoD to dramatically change the purpose 252.239–7005, Rates, Charges, and Common Carriers.’’ and content of the DFARS. Services; and 252.239–7007, 239.7411 [Amended] DATES: Comments on the proposed rule Cancellation or Termination of Orders, should be submitted in writing to the to all carriers of telecommunications 3. Section 239.7411 is amended in address shown below on or before services. The clauses presently apply paragraph (a) as follows: January 21, 2005, to be considered in only to common carriers (those subject a. By removing paragraph (a)(2); the formation of the final rule. to Federal Communications b. By redesignating paragraphs (a)(3) through (a)(7) as paragraphs (a)(2) ADDRESSES: You may submit comments, Commission or other governmental identified by DFARS Case 2003–D053, regulation). Expansion of these clauses through (a)(6) respectively; and c. In newly designated paragraphs using any of the following methods: to all carriers reflects the current (a)(2), (a)(3), and (a)(5), by removing ‘‘— • Federal eRulemaking Portal: http:// business environment, where the Common Carriers.’’ www.regulations.gov. Follow the differences between common and instructions for submitting comments. noncommon carriers have become less • PART 252—SOLICITATION Defense Acquisition Regulations distinct. PROVISIONS AND CONTRACT Web site: http://emissary.acq.osd.mil/ This rule was not subject to Office of CLAUSES dar/dfars.nsf/pubcomm. Follow the Management and Budget review under instructions for submitting comments. Executive Order 12866, dated 252.239–7003 [Removed and Reserved] • E-mail: [email protected]. Include September 30, 1993. 4. Section 252.239–7003 is removed DFARS Case 2003–D053 in the subject and reserved. line of the message. B. Regulatory Flexibility Act • Fax: (703) 602–0350. DoD does not expect this rule to have 252.239–7004 [Amended] • Mail: Defense Acquisition a significant economic impact on a 5. Section 252.239–7004 is amended Regulations Council, Attn: Ms. Michele substantial number of small entities as follows:

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a. In the section heading, by removing b. In the clause title, by removing ‘‘— a. In the section heading, by removing ‘‘—common carriers’’; COMMON CARRIERS’’; ‘‘—common carriers’’; b. In the clause title, by removing ‘‘— c. By revising the clause date to read b. In the clause title, by removing ‘‘— COMMON CARRIERS’’; and ‘‘(XXX 2004)’’; and c. By revising the clause date to read COMMON CARRIERS’’; ‘‘(XXX 2004).’’ d. In paragraph (f), in the first c. By revising the clause date to read sentence, by removing ‘‘—Common ‘‘(XXX 2004)’’; and 252.239–7005 [Amended] Carriers.’’ d. In paragraph (b)(1), by removing 6. Section 252.239–7005 is amended 252.239–7007 [Amended] as follows: ‘‘—Common Carriers.’’ a. In the section heading, by removing 7. Section 252.239–7007 is amended [FR Doc. 04–25813 Filed 11–19–04; 8:45 am] ‘‘—common carriers’’; as follows: BILLING CODE 5001–08–P

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Notices Federal Register Vol. 69, No. 224

Monday, November 22, 2004

This section of the FEDERAL REGISTER for public inspection in the above office marketing arrangements for the contains documents other than rules or during regular business hours. livestock and meat marketing system. proposed rules that are applicable to the Read Comments: All comments will In addition to publishing the notice public. Notices of hearings and investigations, be available for public inspection in the announcing the information collection committee meetings, agency decisions and above office during regular business activities, on October 4, 2004, we sent rulings, delegations of authority, filing of a letter to packers and processors petitions and applications and agency hours (7 CFR 1.27(b)). notifying them of the requirement to statements of organization and functions are FOR FURTHER INFORMATION CONTACT: continue to maintain the required examples of documents appearing in this Roger Schneider, Economist, USDA, information. Subsequent to that, RTI section. GIPSA, (202) 720–7455, 1400 International (RTI),2 the contractor Independence Avenue, SW., Room responsible for the information 1642–S, Washington, DC 20250–3647, collection activities, began pre-testing DEPARTMENT OF AGRICULTURE or via e-mail at data collection procedures with a [email protected]. Grain Inspection, Packers and limited number (9 or fewer of each type) Stockyards Administration SUPPLEMENTARY INFORMATION: The Grain of respondents. Inspection, Packers and Stockyards We received six comments to the Notice of Request for New Information Administration (GIPSA) of the U.S. notice published on September 9, 2004 Collection Department of Agriculture (USDA) (69 FR 54629–54630). Three of those AGENCY: Grain Inspection, Packers and administers the Packers and Stockyards comments requested an extension of the Stockyards Administration, USDA. Act of 1921, as amended and comment period. The requests came supplemented (7 U.S.C. 181–229) (P&S from two industry organizations whose ACTION: Notice of reopening and members will be required to provide the extension of comment period. Act). The P&S Act prohibits unfair, deceptive, and fraudulent practices by information for which comments were SUMMARY: We announced in the Federal market agencies, dealers, stockyards, requested and an industry member who Register our intention to submit to the packers, swine contractors, and live will be required to provide information Office of Management and Budget two poultry dealers in the livestock, for which comments were requested. new information collection activities to meatpacking, and poultry industries. In The extension requests ranged from 2 support a large livestock and meat fiscal year 2003, GIPSA received $4.5 weeks to 90 days. One of the three marketing study. That notice was million in appropriations for a packer commenters specified that additional published on September 9, 2004 (69 FR concentration study, which will be a time is needed to provide constructive 54629–54630), and comments were due broad study of marketing practices in comments. on November 8, 2004. This notice the entire livestock and red meat This notice reopens and extends the announces our intention to reopen that industries (Pub. L. 108–7, 117 Stat. 22). comment period on two information comment period until December 3, The study will address many questions collection packages that we are 2004. and concerns that have been raised preparing to submit to the Office of about changes in the structure and Management and Budget to collect DATES: We will consider comments that information for the study. The first we receive by December 3, 2004. business practices in the livestock and meat industries. We published a notice information collection package will ADDRESSES: We invite you to submit announcing the study and describing cover transactions data on procurement comments on this notice. You may the approach that we planned for the and sales from meat packers, feeders, submit comments by any of the study on May 30, 2003 (68 FR 32455– dealers, meat processors, food following methods: • 32458).1 wholesalers, food retailers, food service E-mail: Send comments via operations, and meat exporters. The electronic mail to More specifically, the study will: (1) Identify and classify spot and second information collection package [email protected]. will cover surveys about the use of spot • Mail: Send hardcopy written alternative marketing arrangements; (2) describe terms, availability, and reasons and alternative marketing arrangements comments to Tess Butler, GIPSA, USDA, among cattle, hog, and lamb producers, 1400 Independence Avenue, SW., Room for use of spot and alternative marketing arrangements and associated prices; (3) meat packers, meat processors, food 1647–S, Washington, DC 20250–3604. wholesalers, food retailers, food service • Fax: Send comments by facsimile determine extent of use, analyze price operations, and meat exporters. transmission to: (202) 690–2755. differences, and analyze short-run spot • market price effects of alternative Title: Livestock and Meat Marketing Hand Delivery or Courier: Deliver Study; Transactions Data and Survey of comments to: Tess Butler, GIPSA, marketing arrangements; (4) measure and compare costs and benefits Spot and Alternative Marketing USDA, 1400 Independence Avenue, Arrangements. SW., Room 1647–S, Washington, DC associated with spot and alternative marketing arrangements; and (5) analyze OMB Number: New collection. 20250–3604. Expiration Date of Approval: New the implications of alternative Instructions: All comments should collection. make reference to the date and page Type of Request: New. number of this issue of the Federal 1 Additional information about the study, Abstract: To conduct this study it is Register. including comments to the notice and the announcement of the contract to perform the study, necessary to collect data on Background Documents: Information is available on the GIPSA Web site (http:// collection package and other documents www.usda.gov/gipsa/psp/issues/livemarketstudy/ 2 RTI International is a trade name of Research relating to this action will be available livestock_marketing_study.htm). Triangle Institute.

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procurement and sales transactions from operations data (profit and loss slaughter, processing, or wholesaling) a sample of meat packers, meat statements). conducted by the respondent. The processors, food wholesalers, food Response to this data collection will information will be requested in retailers, food service operations, and be voluntary for food wholesalers, food electronic format; we are not specifying meat exporters. The establishments retailers, food service operations, and how the respondents must keep the selected for the sample will be asked to meat exporters. The establishments will information, but, as shown in the provide the requested data in an be asked to provide transactions data for following table, will provide a suggested electronic format, to the greatest extent procurement and sales for a 2.5-year format for providing the information. practicable. period in an aggregated format to reduce Respondents providing the information Response to this data collection, the burden. in another format will be asked to which constitutes a special report, will An example of some the information provide a data dictionary to explain be required for meat packers and meat that will be required is shown in the their format. The information collection processors (7 U.S.C. 222).3 The following table for beef packers. More or package contains the detailed establishments will be asked to provide less information may be required and information collection requirements for daily transactions data for procurement different information may be required each type of respondent. We will revise and sales for a 2.5-year period. depending upon the type of livestock or the requested information based on the Additionally, meat packers will be meat the respondent purchases or sells, results of the pre-test and public asked to provide summaries of and the type of activity (for example, comments, as appropriate.

TABLE 1.—PROCUREMENT DATA FIELDS [A transaction is defined as the purchase of a pen/lot of cattle]

Field name Description/suggested format for data

ID Number ...... ID number used by establishment to identify individual lot or transaction. Plant Name ...... Name of plant procuring cattle. Purchase Date ...... Date lot of cattle was purchased from seller (yyyy/mm/dd). Kill Date ...... Date first cattle in lot were slaughtered (yyyy/mm/dd). Seller Name ...... Name of seller. Seller City ...... City location of the feedlot where the cattle were fed (Not the address or location of the owner of the cattle). Seller State ...... State location of the feedlot where the cattle were fed (Not the address or location of the owner of the cattle). Seller County ...... County location of the feedlot where the cattle were fed (Not the address or location of the owner of the cattle). Seller Zip ...... Zip code of the feedlot where the cattle were fed (Not the address or location of the owner of the cattle). Number of Head ...... Number of live cattle in this lot (Exclude condemned and dead). Condemn ...... Number of condemned and dead cattle in this lot. Cattle Type ...... 1 = 95% or more of this lot was beef cattle; 2 = 95% or more of this lot was dairy cattle; 3 = Mixed beef and dairy cattle. Steers ...... Percentage or Number of steers in this lot. Heifers ...... Percentage or Number of heifers in this lot. Bulls ...... Percentage or Number of bulls in this lot. Cows ...... Percentage or Number of cows in this lot. Stag ...... Percentage or Number of stags in this lot. Bullocks ...... Percentage or Number of bullocks in this lot. Heiferettes ...... Percentage or Number of heiferettes in this lot. Category Units ...... 1 = Number in the lot (for example, number of steers, heifers, etc); 2 = Percentage in the lot (for example, per- centage of steers, heifers, etc). Live Weight ...... Net live or actual purchase weight for this lot (Equal to gross live weight minus pencil shrink). Pencil Shrink ...... Shrink percentage used to calculate purchase weight. Hot Weight ...... Total hot weight of this lot (carcass weight or dressed weight, if weighed pre-chill). Cold Weight ...... Total cold weight of this lot (if weighed post-chill). Weight Units ...... 1 = Pounds; 2 = Hundred weight (cwt); 3 = Tons. Total Cost ...... Total delivered cost of this lot (Includes cost of the cattle, transportation, commission, feed costs, and hide pre- miums charged to the packer by the seller). Shipping Cost ...... Total transportation cost paid by packer (0 = if cost was not paid by packer). Commission Cost ...... Total commission cost paid by packer (0 = if cost was not paid by packer). Feed Cost ...... Total feed cost paid by packer (0 = if cost was not paid by packer). Hide Premium ...... Total hide premium paid by packer (0 = if no premium was paid by packer). Prime ...... Percentage of this lot that were Quality grade Prime. Choice ...... Percentage of this lot that were Quality grade Choice. Upper Choice ...... Percentage of this lot that were in the Upper 2/3 Choice. Lower Choice ...... Percentage of this lot that were in the Lower 1/3 Choice. Select ...... Percentage of this lot that were Quality grade Select. Standard ...... Percentage of this lot that were Quality grade Standard. Other ...... Percentage of this lot that were Quality grade of something other than Prime, Choice, Choice Upper 2/3, Choice Lower 1/3, Select, or Standard. Quality Grade Units ...... 1 = Live weight; 2 = Hot weight; 3 = Cold weight; 4 = Number of head. Dark Cutter ...... Percentage or Number of cattle classified as dark cutters. Dark Cutter Units ...... 1 = Number in the lot; 2 = Percentage in the lot. Yield Grade 1 ...... Percentage of this lot that were Yield Grade 1. Yield Grade 2 ...... Percentage of this lot that were Yield Grade 2. Yield Grade 3 ...... Percentage of this lot that were Yield Grade 3.

3 been previously approved separately under OMB The recordkeeping requirements for the data control number 0580–0015. covered by this information collection activity have

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TABLE 1.—PROCUREMENT DATA FIELDS—Continued [A transaction is defined as the purchase of a pen/lot of cattle]

Field name Description/suggested format for data

Yield Grade 4 ...... Percentage of this lot that were Yield Grade 4. Yield Grade 5 ...... Percentage of this lot that were Yield Grade 5. Yield Grade Other ...... Percentage of this lot that were Yield Grade other than 1, 2, 3, 4, or 5. Yield Grade Units ...... 1 = Live weight; 2 = Hot weight; 3 = Cold weight; 4 = Number of head. % Heavy Weight ...... Percentage of cattle in lot that was classified heavy weight. Heavy Weight Units ...... 1 = Live weight; 2 = Hot weight; 3 = Cold weight; 4 = Number of head. Heavy Weight Limit ...... Maximum weight allowed before cattle were classified heavy weight. % Light Weight ...... Percentage of cattle in lot that was classified light weight. Light Weight Units ...... 1 = Live weight; 2 = Hot weight; 3 = Cold weight; 4 = Number of head. Light Weight Limit ...... Minimum weight allowed before cattle were classified light weight. Age 30+ ...... Percentage of cattle in lot that was 30 months of age and older. Age Units ...... 1 = Live weight; 2 = Hot weight; 3 = Cold weight; 4 = Number of head. Kosher ...... 1 = Cattle in this lot were eligible for Kosher status; 2 = Cattle in this lot were not eligible for Kosher status. Halal ...... 1 = Cattle in this lot were eligible for Halal status; 2 = Cattle in this lot were not eligible for Halal status. Certification Program ...... 1 = Cattle were raised under the requirements of a certification program (Certified Angus Beef, Certified Hereford Beef, etc.); 2 = Cattle were not raised under the requirements of a certification program. Procurement Method ...... 1 = Spot-Market/Open Market (cattle purchased directly from feedlot, other seller, or at public markets within 2 weeks of kill date); 2 = Forward Contract (packer contracts with seller to purchase lot of cattle at either a fixed or basis price; contract is entered into at any time between placement of cattle on feed and 2 weeks prior to kill date); 3 = Packer-Fed/Owned (packer owned cattle fed for slaughter at either custom feedlot or packer owned or controlled feedlot); 4 = Marketing Agreement (a long-term arrangement where packer agrees to purchase specified number of cattle per specified time period such as week, month, or year); 5 = Joint Venture or Shared Ownership 6 = Other (purchasing method not captured in other categories). Pricing Method ...... 1 = Negotiated Privately; 2 = Open Bidding; 3 = Sealed Bid; 4 = Formula Pricing; 5 = Internal Transfer Price; 6 = Other (pricing method not captured in other categories). Valuation Method ...... 1 = Live weight, fixed price, not dependent on grade and yield; 2 = Carcass weight (hot or dressed weight), fixed price, not dependent on grade and yield; 3 = Carcass weight (hot or dressed weight), dependent on carcass grade and yield or grid value; 4 = Other (valuation method not captured in other categories).

In addition, to complete this study it restrictions in the P&S Act. Analysis information is estimated to average 60 is necessary to conduct surveys of cattle, datasets created using the transactions minutes per response. hog, and lamb producers, feeders, data will be stored in an encrypted Respondents (Affected Public): Cattle, dealers, meat packers, meat processors, format. Individual data records will not hog, and lamb producers, feeders, food wholesalers, food retailers, food include the identity of the dealers, meat packers, meat processors, service operations, and meat exporters. establishment. The study findings will food wholesalers, food retailers, food Participation in the surveys will be be reported to the public only in service operations, and meat exporters. voluntary. Surveys will be mailed, with aggregated form so that individual Estimated Number of Respondents: initial and follow-up contacts by establishments cannot be identified. 3,800. telephone. The surveys will collect Estimated Number of Responses per information on terms and frequency of (1) Transactions Data Respondent: 1. use of alternative marketing Estimate of Burden: The public Estimated Total Annual Burden on arrangements; volume of livestock and reporting burden for this collection of Respondents: 3,800 hours. meat transferred with alternative information is estimated to average 40 Total Costs: Survey reporting marketing arrangements, pricing hours per response. $139,080 for all establishments methods for livestock and meat; reasons combined. Calculated as follows: (3,800 Respondents (Affected Public): Meat × for using alternative marketing packers, meat processors, food hours) ($36.60 per hour) = $139,080. arrangements; and the effects of wholesalers, food retailers, food service Copies of this information collection alternative marketing arrangements on operations, and meat exporters. assessment can be obtained from Tess costs and efficiencies, product quality, Butler; see ADDRESSES section for Estimated Number of Respondents: and risk shifting. The survey questions contact information. 400. will be targeted to the appropriate As required by the Paperwork industry segment to reduce burden. The Estimated Number of Responses per Reduction Act (44 U.S.C. 3506(c)(2)(A)) surveys will request information about Respondent: 1. and its implementing regulations (5 CFR the respondents’ operations for the Estimated Total Annual Burden on 1320.8(d)(1)(i)), we specifically request previous fiscal year. Respondents: 16,000 hours. comments on: All data collection requests will Total Costs: Transactions data (a) Whether the proposed collection of include a pledge of confidentiality and reporting $435,072 for all information is necessary for the proper the data will be collected exclusively for establishments combined. Calculated as performance of the functions of the statistical purposes consistent with the follows: (16,000 hours) × ($27.192 per agency, including whether the provisions of the Confidential hour) = $435,072. information will have practical utility; Information Protection and Statistical (b) The accuracy of the agency’s (2) Spot and Alternative Marketing Efficiency Act of 2002 (CIPSEA). In estimate of the burden of the proposed Arrangements Survey addition, the transactions data collected collection of information, including the from meat packers and processors (part Estimate of Burden: The public validity of the methodology and 1) will be subject to the confidentiality reporting burden for this collection of assumptions used;

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(c) Ways to enhance the quality, Department is adopting its preliminary considered the successor–in-interest to utility, and clarity of the information to determination that SDK is not the the SDEM/DDE Japan joint venture. be collected; and successor–in-interest to SDEM/DDE From August 25 through August 27, (d) Ways to minimize the burden on Japan joint venture. 2004, the Department conducted a verification of information in the collection of information on those EFFECTIVE DATE: November 22, 2004. who are to respond, including through connection with this changed the use of appropriate automated, FOR FURTHER INFORMATION CONTACT: Zev circumstances review at SDK’s offices in electronic, mechanical, or other Primor, AD/CVD Operations, Office 4, Kawasaki, Japan. On September 20, technological collection techniques or Import Administration, International 2004, the Department issued its other forms of information technology. Trade Administration, U.S. Department Verification Report. See Memorandum All responses to this notice will be of Commerce, 14th Street and from Zev Primor to the File summarized and included in the request Constitution Avenue, NW, Washington, ‘‘Antidumping Duty Changed for OMB approval. All comments will DC 20230; telephone (202) 482–4114. Circumstances Review of also become a matter of public record. SUPPLEMENTARY INFORMATION: Polychloroprene Rubber (PR) from Japan: Verification Report for Showa Authority: 44 U.S.C. 3506, 5 CFR 1320.8, Background and Pub. L. 108–7, 117 Stat. 22. Denko K.K. (SDK) Regarding Successorship,’’ September 20, 2004 Dated: November 17, 2004. On December 6, 1973, the Department of Treasury published in the Federal (Verification Report). On October 21, Donna Reifschneider, Register (38 FR 33593) the antidumping 2004, we preliminarily determined that Administrator, Grain Inspection, Packers and finding on PR from Japan. On January given the totality of the considered Stockyards Administration. 14, 2004, SDK submitted a letter stating factors, the record evidence [FR Doc. 04–25803 Filed 11–19–04; 8:45 am] that it is the successor–in-interest to the demonstrates that SDK is a new entity BILLING CODE 3410–EN–U SDEM/DDE Japan joint venture and, as that operates in a significantly different such, entitled to receive the same manner from the SDEM/DDE Japan joint antidumping duty treatment previously venture. Consequently, we preliminarily DEPARTMENT OF COMMERCE accorded to the joint venture (i.e., zero determined that SDK should not be cash deposit). See Notice of Final given the same antidumping duty International Trade Administration Changed Circumstances Antidumping treatment as the joint venture, i.e., zero (A–588–046) Duty Administrative Review: percent antidumping duty cash deposit Polychloroprene Rubber from Japan, 67 rate. Instead, SDK, as a new entity, Notice of Final Results of Antidumping FR 58 (January 2, 2002), (Changed should continue to be assigned as its Duty Changed Circumstances Review: Circumstances). In that same letter, SDK cash deposit rate the ‘‘all others’’ rate, which in this proceeding is 55 percent. Polychloroprene Rubber from Japan explained that on November 1, 2002, the See Preliminary Results. On October 28, SDEM/DDE Japan joint venture was AGENCY: Import Administration, 2004, DuPont submitted a letter to the dissolved. Prior to the joint venture’s International Trade Administration, Department stating that the dissolution, SDK and DuPont each Department of Commerce. Department’s preliminary determination owned 50 percent of the joint venture. ACTION: Notice of Final Results of that SDK is not the successor–in-interest SDK, therefore, requested that the Antidumping Duty Changed to the SDEM/DDE Japan joint venture is Department conduct an expedited Circumstances Review. well–founded in both law and fact. On changed circumstances review of the the same date, SDK filed a letter stating antidumping duty finding on PR from SUMMARY: On October 21, 2004, the that it would not comment on the Japan pursuant to section 751(b)(1) of Department of Commerce (the preliminary results nor participate the Tariff Act (the Act), as amended, Department) published a notice of further in the proceeding. preliminary results of its changed and 19 CFR 351.221(c)(3)(ii). However, circumstances review of the because the submitted record Scope of Review antidumping duty finding on supporting SDK’s claims was deficient, Imports covered by this review are polychloroprene rubber (PR) from Japan the Department found that an expedited shipments of PR, an oil resistant in which we preliminarily determined review was impracticable and, on March synthetic rubber also known as that Showa Denko K.K. (SDK) is not the 1, 2004, issued a notice of initiation polymerized chlorobutadiene or successor–in-interest to the joint without the preliminary results. See neoprene, currently classifiable under venture of Showa DDE Manufacturing Notice of Initiation of Antidumping items 4002.42.00, 4002.49.00, K.K. (SDEM) and DDE Japan Kabushiki Duty Changed Circumstances Review: 4003.00.00, 4462.15.21, and 4462.00.00 Kaisha (DDE Japan) (collectively, Polychloroprene Rubber from Japan, 69 of the Harmonized Tariff Schedule of SDEM/DDE Japan joint venture). See FR 9586 (March 1, 2004). the United States (HTSUS). HTSUS item Notice of Preliminary Results of In response to the Department’s numbers are provided for convenience Antidumping Duty Changed supplemental questionnaire, on March and customs purposes. The written Circumstances Review: Polychloroprene 10 and 19, 2004, SDK provided the description remains dispositive. Rubber from Japan, 69 FR 61796 Department with supplemental (October 21, 2004) (Preliminary Results). questionnaire responses. Additionally, Final Results of Changed We gave interested parties, SDK and on February 4 and May 3, 2004, DuPont Circumstances Review DuPont Dow Elastomers L.L.C. notified the Department that it opposes DuPont’s comment fully concurs with (DuPont), the petitioner in this SDK’s request to be considered the the Department’s preliminary proceeding, the opportunity to comment successor–in-interest to the SDEM/DDE determination and raises no additional on the Preliminary Results. We received Japan joint venture. In particular, issues. For the reasons stated in the a comment from the petitioner DuPont argued that differences between Preliminary Results, we continue to find concurring with our preliminary results. the corporate structures, distribution that SDK is not the successor–in-interest No additional comments were received. channels, price structure, and customer to SDEM/DDE Japan joint venture. We Therefore, for these final results, the base preclude SDK from being will instruct U.S. Customs and Border

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Protection to apply the cash deposit Administration, International Trade Act’’). See Certain Polyester Staple Fiber determination from this changed Administration, U.S. Department of from Korea: Final Results of circumstances review to all entries of Commerce, 14th Street and Constitution Antidumping Duty Administrative the subject merchandise entered, or Avenue, NW, Washington, DC 20230; Review and Final Determination to withdrawn from warehouse, for telephone: (202) 482–1174. Revoke the Order In Part, 69 FR 61341 consumption on or after the date of SUPPLEMENTARY INFORMATION: (October 18, 2004) (‘‘Final Results’’). On publication of the final results of this October 18, 2004, Saehan Industries, changed circumstances review. See Scope of the Order Inc. (‘‘Saehan’’) filed a timely Granular Polytetrafluoroethylene Resin For the purposes of this order, the ministerial error allegation pursuant to from Italy; Final Results of Antidumping product covered is certain polyester 19 CFR 351.224(c)(2). The petitioner1 in Duty Changed Circumstances Review, staple fiber (‘‘PSF’’). PSF is defined as this review did not file comments on 68 FR 25327 (May 12, 2003). This synthetic staple fibers, not carded, Saehan’s allegation. deposit rate shall remain in effect until combed or otherwise processed for Saehan contends that the Department publication of the final results of the spinning, of polyesters measuring 3.3 excluded credit expenses from the next administrative review in which decitex (3 denier, inclusive) or more in calculation of home market direct SDK participates. diameter. This merchandise is cut to selling expenses in the final margin This notice also serves as a reminder lengths varying from one inch (25 mm) program. to parties subject to administrative to five inches (127 mm). The protective order (APO) of their merchandise subject to this order may In accordance with section 735(e) of responsibility concerning the be coated, usually with a silicon or the Act, we have determined that disposition of proprietary information other finish, or not coated. PSF is ministerial errors were made in our final disclosed under APO in accordance generally used as stuffing in sleeping results margin calculations. Specifically, with 19 CFR 351.305(a)(3). Timely bags, mattresses, ski jackets, comforters, we find that we did not include home written notification of the return/ cushions, pillows, and furniture. market credit expenses in Saehan’s destruction of APO materials or Merchandise of less than 3.3 decitex calculation of home market direct conversion to judicial protective order is (less than 3 denier) currently classifiable selling expenses. For a detailed hereby requested. Failure to comply under the Harmonized Tariff Schedule discussion of the ministerial error with the regulations and the terms of an of the United States (‘‘HTSUS’’) at allegation and the Department’s APO is a sanctionable violation. subheading 5503.20.00.20 is specifically analysis, see Memorandum to Susan This notice is in accordance with excluded from this order. Also Kuhbach, ‘‘Antidumping Duty sections 751(b)(1) and 777(i)(1) of the specifically excluded from this order are Administrative Review of Certain Act, and 19 CFR 351.216. polyester staple fibers of 10 to 18 denier Polyester Staple Fiber from the Republic that are cut to lengths of 6 to 8 inches of Korea; Allegation of Ministerial Dated: November 15, 2004. (fibers used in the manufacture of Error,’’ dated November 12, 2004, which James J. Jochum, carpeting). In addition, low–melt PSF is is on file in the Central Records Unit Assistant Secretary for Import excluded from this order. Low–melt PSF (‘‘CRU’’), room B–099 of the main Administration. is defined as a bi–component fiber with Department building. [FR Doc. E4–3276 Filed 11–22–04; 8:45 am] an outer sheath that melts at a In addition, when examining Saehan’s BILLING CODE: 3510–DS–S significantly lower temperature than its ministerial error allegation, the inner core. Department found another ministerial The merchandise subject to this order error. For a full description, see DEPARTMENT OF COMMERCE is currently classifiable in the HTSUS at Memorandum to File, ‘‘Ministerial Error subheadings 5503.20.00.45 and International Trade Administration in Saehan Industries, Inc.’s Final 5503.20.00.65. Although the HTSUS Margin Calculation,’’ dated October 22, [A–580–839] subheadings are provided for 2004, which is on file in the convenience and customs purposes, the Department’s CRU. No parties Notice of Amended Final Results of written description of the merchandise commented on the correction of this Antidumping Duty Administrative under order is dispositive. clerical error. Review: Certain Polyester Staple Fiber from Korea Amended Final Results In accordance with 19 CFR. On October 8, 2004, the Department 351.224(e), we are amending the final AGENCY: Import Administration, of Commerce (‘‘the Department’’) results of the antidumping duty International Trade Administration, determined that certain PSF from the administrative review of PSF from Department of Commerce. Republic of Korea (‘‘Korea’’) is being Korea to correct these ministerial errors. EFFECTIVE DATE: November 22, 2004. sold in the United States at less than fair The revised weighted–average FOR FURTHER INFORMATION CONTACT: value, as provided in section 751(a) of dumping margin for Saehan is listed Andrew McAllister, Import the Tariff Act of 1930, as amended (‘‘the below:

Original Weighted–average Amended Results Weighted– Producer/Manufacturer/Exporter margin percentage average margin percentage

Saehan Industries, Inc...... 4.19 2.13

1 Arteva Specialties S.a.r.l., d/b/a Kosa and Wellman, Inc.

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Cash Deposit Rates DEPARTMENT OF COMMERCE a flat–rolled product in coils that is greater than 9.5 mm in width and less The following antidumping duty International Trade Administration than 4.75 mm in thickness, and that is deposits will be required on all [A–580–834, A–583–831, A–412–818] annealed or otherwise heat treated and shipments of PSF from Korea entered, or pickled or otherwise descaled. The withdrawn from warehouse, for Stainless Steel Sheet and Strip in Coils subject sheet and strip may also be consumption, effective on or after the from The Republic of Korea, Taiwan further processed (i.e., cold–rolled, publication date of the final results of and the United Kingdom; Final Results polished, aluminized, coated, etc.) this administrative review, as provided of the Expedited Five Year (‘‘Sunset’’) provided that it maintains the specific by section 751(a)(1) of the Act: (1) the Reviews of Antidumping Duty Orders dimensions of sheet and strip following cash deposit rate for the reviewed such processing. AGENCY: Import Administration, company will be the rate listed above; The merchandise subject to this order International Trade Administration, is currently classifiable in the (2) for previously reviewed or Department of Commerce investigated companies not listed above, Harmonized Tariff Schedule of the ACTION: Notice of Final Results of the the cash deposit rate will continue to be United States (‘‘HTS’’) at subheadings: Expedited Five Year (‘‘Sunset’’) Reviews the company–specific rate published for 7219.13.00.31, 7219.13.00.51, of Antidumping Duty Orders on 7219.13.00.71, 7219.13.00.81, the most recent period; (3) if the Stainless Steel Sheet and Strip in Coils exporter is not a firm covered in this 7219.14.00.30, 7219.14.00.65, from the Republic of Korea, Taiwan, and 7219.14.00.90, 7219.32.00.05, review, the previous review, or the the United Kingdom. original investigation, but the 7219.32.00.20, 7219.32.00.25, manufacturer is, the cash deposit rate SUMMARY: On June 1, 2004, the 7219.32.00.35, 7219.32.00.36, 7219.32.00.38, 7219.32.00.42, will be the rate established for the most Department of Commerce (‘‘the 7219.32.00.44, 7219.33.00.05, recent period for the manufacturer of Department’’) initiated sunset reviews of the antidumping duty orders on 7219.33.00.20, 7219.33.00.25, the merchandise; and (4) if neither the 7219.33.00.35, 7219.33.00.36, exporter nor the manufacturer is a firm stainless steel sheet and strip in coils (‘‘SSSS’’) from the Republic of Korea 7219.33.00.38, 7219.33.00.42, covered in this or any previous reviews, 7219.33.00.44, 7219.34.00.05, the cash deposit rate will be 7.91 (‘‘Korea’’), Taiwan, and the United 1 7219.34.00.20, 7219.34.00.25, percent, the ‘‘all others’’ rate established Kingdom (‘‘UK’’). On the basis of the notice of intent to participate, adequate 7219.34.00.30, 7219.34.00.35, in Certain Polyester Staple Fiber from substantive comments filed on behalf of 7219.35.00.05, 7219.35.00.15, the Republic of Korea: Notice of the domestic interested parties, and 7219.35.00.30, 7219.35.00.35, Amended Final Determination and inadequate response from respondent 7219.90.00.10, 7219.90.00.20, Amended Order Pursuant to Final Court interested parties, the Department 7219.90.00.25, 7219.90.00.60, Decision, 68 FR 74552 (December 24, conducted expedited sunset reviews of 7219.90.00.80, 7220.12.10.00, 2003). These cash deposit requirements the antidumping duty orders pursuant 7220.12.50.00, 7220.20.10.10, shall remain in effect until publication to section 751(c)(3)(B) of the Tariff Act 7220.20.10.15, 7220.20.10.60, of the final results of the next of 1930, as amended, (‘‘the Act’’) and 7220.20.10.80, 7220.20.60.05, administrative review. section 351.218(e)(1)(ii)(B) of the 7220.20.60.10, 7220.20.60.15, 7220.20.60.60, 7220.20.60.80, Assessment Rates Department’s regulations. As a result of these sunset reviews, the Department 7220.20.70.05, 7220.20.70.10, The Department will issue determined that revocation of the 7220.20.70.15, 7220.20.70.60, appropriate assessment instructions antidumping duty orders would likely 7220.20.70.80, 7220.20.80.00, 7220.20.90.30, 7220.20.90.60, directly to U.S. Customs and Border lead to continuation or recurrence of 7220.90.00.10, 7220.90.00.15, Protection within 15 days of publication dumping at the levels listed below in 7220.90.00.60, and 7220.90.00.80. of these amended final results of review. the section entitled ‘‘Final Results of Review’’. Although the HTS subheadings are We are issuing and publishing this provided for convenience and customs EFFECTIVE DATE: November 22, 2004. determination and notice in accordance purposes, the Department’s written FOR FURTHER INFORMATION CONTACT: with sections 751(a)(1) and 771(i)(1) of description of the merchandise under Martha V. Douthit, Office of Policy, the Act. review is dispositive. Import Administration, International Excluded from the scope of this order Dated: November 15, 2004. Trade Administration, U.S. Department are the following: (1) Sheet and strip James J. Jochum, of Commerce, 14th Street & Constitution that is not annealed or otherwise heat Avenue, NW, Washington, DC, 20230; Assistant Secretary for Import treated and pickled or otherwise telephone: 202–482–5050. Administration. descaled; (2) sheet and strip that is cut [FR Doc. E4–3277 Filed 11–19–04; 8:45 am] SUPPLEMENTARY INFORMATION: to length; (3) plate (i.e., flat–rolled BILLING CODE 3510–DS–S Scope of Orders stainless steel products of a thickness of 4.75 mm or more); (4) flat wire (i.e., For purposes of this sunset review, cold–rolled sections, with a prepared the products covered are certain edge, rectangular in shape, of a width of stainless steel sheet and strip in coils. not more than 9.5 mm); and (5) razor Stainless steel is an alloy steel blade steel. Razor blade steel is a flat– containing, by weight, 1.2 percent or rolled product of stainless steel, not less of carbon and 10.5 percent or more further worked than cold–rolled (cold– of chromium, with or without other reduced), in coils, of a width of not elements. The subject sheet and strip is more than 23 mm and a thickness of 1 See Initiation of Five-Year (‘‘Sunset’’) Reviews, 0.266 mm or less, containing, by weight, 69 FR 30874 (June 1, 2004) (‘‘Notice of Initiation’’). 12.5 to 14.5 percent chromium, and

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certified at the time of entry to be used total rare earth elements of more than proprietary trade names such as in the manufacture of razor blades.2 0.06 percent, with the balance ‘‘Durphynox 17.’’5 In response to comments by interested iron.Permanent magnet iron–chromium- Finally, three specialty stainless steels parties, the Department has determined cobalt alloy stainless strip is also typically used in certain industrial that certain specialty stainless steel excluded from the scope of this order. blades and surgical and medical products are also excluded from the This ductile stainless steel strip instruments are also excluded from the scope of this order. These excluded contains, by weight, 26 to 30 percent scope of this order. These include products are described below. chromium, and 7 to 10 percent cobalt, stainless steel strip in coils used in the Flapper valve steel is defined as with the remainder of iron, in widths production of textile cutting tools (i.e., stainless steel strip in coils containing, 228.6 mm or less, and a thickness carpet knives).6 This steel is similar to by weight, between 0.37 and 0.43 between 0.127 and 1.270 mm. It exhibits ASTM grade 440F, but containing, by percent carbon, between 1.15 and 1.35 magnetic remanence between 9,000 and weight, 0.5 to 0.7 percent of percent molybdenum, and between 0.20 12,000 gauss, and a coercivity of molybdenum. The steel also contains, and 0.80 percent manganese. This steel between 50 and 300 oersteds. This by weight, carbon of between 1.0 and also contains, by weight, phosphorus of product is most commonly used in 1.1 percent, sulfur of 0.020 percent or 0.025 percent or less, silicon of between electronic sensors and is currently less, and includes between 0.20 and 0.20 and 0.50 percent, and sulfur of available under proprietary trade names 0.30 percent copper and between 0.20 0.020 percent or less. The product is such as ‘‘Arnokrome III.’’3 and 0.50 percent cobalt. The second manufactured by means of vacuum arc Certain electrical resistance alloy steel excluded stainless steel strip in coils is remelting, with inclusion controls for is also excluded from the scope of this similar to AISI 420–J2 and contains, by sulfide of no more than 0.04 percent and order. This product is defined as a non– weight, carbon of between 0.62 and 0.70 for oxide of no more than 0.05 percent. magnetic stainless steel manufactured to percent, silicon of between 0.20 and Flapper valve steel has a tensile strength 0.50 percent, manganese of between of between 210 and 300 ksi, yield American Society of Testing and Materials (ASTM) specification B344 0.45 and 0.80 percent, phosphorus of no strength of between 170 and 270 ksi, more than 0.025 percent and sulfur of plus or minus 8 ksi, and a hardness (Hv) and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 no more than 0.020 percent. This steel of between 460 and 590. Flapper valve has a carbide density on average of 100 steel is most commonly used to produce percent iron, and is most notable for its resistance to high temperature carbide particles per square micron. An specialty flapper valves for compressors. example of this product is ‘‘GIN5’’ steel. Also excluded is a product referred to corrosion. It has a melting point of 1390 The third specialty steel has a chemical as suspension foil, a specialty steel degrees Celsius and displays a creep composition similar to AISI 420 F, with product used in the manufacture of rupture limit of 4 kilograms per square carbon of between 0.37 and 0.43 suspension assemblies for computer millimeter at 1000 degrees Celsius. This percent, molybdenum of between 1.15 disk drives. Suspension foil is described steel is most commonly used in the and 1.35 percent, but lower manganese as 302/304 grade or 202 grade stainless production of heating ribbons for circuit of between 0.20 and 0.80 percent, steel of a thickness between 14 and 127 breakers and industrial furnaces, and in phosphorus of no more than 0.025 microns, with a thickness tolerance of rheostats for railway locomotives. The percent, silicon of between 0.20 and plus–or-minus 2.01 microns, and product is currently available under 0.50 percent, and sulfur of no more than surface glossiness of 200 to 700 percent proprietary trade names such as ‘‘Gilphy 4 0.020 percent. This product is supplied Gs. Suspension foil must be supplied in 36.’’ with a hardness of more than Hv 500 coil widths of not more than 407 mm, Certain martensitic precipitation– guaranteed after customer processing, and with a mass of 225 kg or less. Roll hardenable stainless steel is also and is supplied as, for example, marks may only be visible on one side, excluded from the scope of this order. ‘‘GIN6.’’7 with no scratches of measurable depth. This high–strength, ductile stainless The material must exhibit residual steel product is designated under the Background Unified Numbering System (UNS) as stresses of 2 mm maximum deflection, On June 1, 2004, the Department S45500–grade steel, and contains, by and flatness of 1.6 mm over 685 mm initiated sunset reviews of the weight, 11 to 13 percent chromium, and length. antidumping duty orders on SSSS from Certain stainless steel foil for 7 to 10 percent nickel. Carbon, Korea, Taiwan, and the UK in automotive catalytic converters is also manganese, silicon and molybdenum accordance with section 751(c) of the excluded from the scope of this order. each comprise, by weight, 0.05 percent Act. See Notice of Initiation, 69 FR his stainless steel strip in coils is a or less, with phosphorus and sulfur 30874 (June 1, 2004). specialty foil with a thickness of each comprising, by weight, 0.03 The Department received notices of between 20 and 110 microns used to percent or less. This steel has copper, intent to participate within the produce a metallic substrate with a niobium, and titanium added to achieve applicable deadline specified in section honeycomb structure for use in aging, and will exhibit yield strengths as 351.218(d)(1)(i) of the Department’s automotive catalytic converters. The high as 1700 Mpa and ultimate tensile regulations on behalf of Allegheny steel contains, by weight, carbon of no strengths as high as 1750 Mpa after Ludlum Corporation (‘‘Allegheny more than 0.030 percent, silicon of no aging, with elongation percentages of 3 Ludlum’’), North America Stainless more than 1.0 percent, manganese of no percent or less in 50 mm. It is generally (‘‘NAS’’), Nucor Corporation (‘‘Nucor’’), more than 1.0 percent, chromium of provided in thicknesses between 0.635 the United Steelworkers of America, between 19 and 22 percent, aluminum and 0.787 mm, and in widths of 25.4 AFL–CIO/CLC (‘‘USWA’’); Local 3303 of no less than 5.0 percent, phosphorus mm. This product is most commonly United Auto Workers (‘‘Local 3303 of no more than 0.045 percent, sulfur of used in the manufacture of television no more than 0.03 percent, lanthanum tubes and is currently available under 5 ‘‘Durphynox 17’’ is a trademark of Imphy, S.A. of between 0.002 and 0.05 percent, and 6 This list of uses is illustrative and provided for 3 ‘‘Arnokrome III’’ is a trademark of the Arnold descriptive purposes only. 2 See Chapter 72 of the HTSUS, ‘‘Additional U.S. Engineering Company. 7 ‘‘GIN4 Mo’’, ‘‘GIN5’’ and ‘‘GIN6’’ are the Note’’ 1(d). 4‘‘‘‘Gilphy 36’’ is a trademark of Imphy, S.A. proprietary grades of Hitachi Metals America, Ltd.

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UAW’’)(formerly the Butler Armco and the UK would likely lead to DEPARTMENT OF COMMERCE Independent Union; and the Zanesville continuation or recurrence of dumping Armco Independent Organization, Inc. at the following weighted–average International Trade Administration (‘‘ZAIO’’)(collectively ‘‘domestic margins: [A–475–824] interested parties’’). The domestic interested parties claimed interested– KOREA Stainless Steel Sheet and Strip in Coils party status as U.S. producers of the From Italy; Final Results of the subject merchandise, or certified unions Manufacturers/Pro- Weighted–Average Expedited Sunset Review of the whose workers are engaged in the ducers/Exporters Margin (Percent) Antidumping Duty Order production of the subject merchandise in the United States as defined by POSCO ...... 2.49 AGENCY: Import Administration, section 771(9)(C) and (D) of the Act. Taihan Electric Wire International Trade Administration, The Department received complete Co., Ltd...... 58.79 Department of Commerce. substantive responses from the domestic Daiyang Metal Co., Ltd. 5.44 ACTION: Notice of final results of interested parties within the 30-day All Others ...... 2.49 expedited sunset review of the deadline specified in the Department’s antidumping duty order on stainless steel sheet and strip in coils from Italy. regulations under section TAIWAN 351.218(d)(3)(i). However, the SUMMARY: On June 1, 2004, the Department did not receive any Manufactureres/Pro- Weighted–Average Department of Commerce (‘‘the responses from respondent interested ducers/Exporters Margin (Percent) Department’’) initiated a sunset review parties to these proceedings. As a result, of the antidumping duty order on pursuant to section 751(c)(3)(B) of the Tung Mung/Ta Chen .... 15.40 stainless steel sheet and strip in coils Act and 19 CFR 351.218(e)(1)(ii)(C)(2), Tung Mung ...... Excluded (‘‘SSSSC’’) from Italy pursuant to the Department conducted expedited YUSCO/Ta Chen ...... 36.44 section 751(c) of the Tariff Act of 1930, sunset reviews of these antidumping YUSCO ...... 21.00 as amended (‘‘the Act’’). On the basis of duty orders. All Others ...... 12.61 These antidumping duty orders a notice of intent to participate and an remain in effect for manufacturers, adequate substantive response filed on producers, and exporters of SSSS from UK behalf of domestic interested parties and Korea, Taiwan, and the UK, except for inadequate responses from respondent Inchon Iron & Steel Co., a Korean Manufacturer/Producers/ Weighted–Average interested parties, the Department Exporters Margin (Percent) company for which the order was conducted an expedited (120-day) sunset review. As a result of this sunset revoked in the investigation, and Tung Avesta Sheffield Ltd./ Mung and Chang Mein, Taiwanese review, the Department finds that Avesta Sheffield revocation of the antidumping duty companies. NAD, Inc...... 14.84 order would be likely to lead to All Others ...... 14.84 Analysis of Comments Received continuation or recurrence of dumping. All issues raised in this sunset review The dumping margins are identified in are addressed in the Issues and Decision This notice also serves as the only the Final Results of Review section of Memorandum (‘‘Decision Memo’’) from reminder to parties subject to this notice. Ronald K. Lorentzen, Acting Director, administrative protective orders EFFECTIVE DATE: November 22, 2004. Office of Policy, Import Administration, (‘‘APO’’) of their responsibility FOR FURTHER INFORMATION CONTACT: to James J. Jochum, Assistant Secretary concerning the return or destruction of Hilary E. Sadler, Esq., Office of Policy for Import Administration, dated proprietary information disclosed under for Import Administration, International November 15, 2004, which is hereby APO in accordance with 19 CFR Trade Administration, U.S. Department adopted by this notice. The issues 351.305. Timely notification of the of Commerce, 14th Street & Constitution discussed in the Decision Memo include return or destruction of APO materials Avenue, NW., Washington, DC 20230; the likelihood of continuation or or conversion to judicial protective telephone: (202) 482–4340. recurrence of dumping and the order is requested. Failure to comply SUPPLEMENTARY INFORMATION: magnitude of the margin likely to with the regulations and terms of an prevail if the antidumping duty orders APO is a violation which is subject to Background were revoked. Parties can find a sanction. On June 1, 2004, the Department complete discussion of all issues raised We are issuing and publishing the published the notice of initiation of the sunset review of the antidumping duty in these sunset reviews and the results and notice in accordance with corresponding recommendations in this order on SSSSC from Italy.1 On June 16, sections 751(c), 752, and 777(i)(1) of the public memo, which is on file in room 2004, the Department received a Notice Act. B–099 of the main Commerce Building. of Intent to Participate from Nucor In addition, a complete version of the Dated: November 15, 2004. Corporation; Allegheny Ludlum Decision Memo can be accessed directly James J. Jochum, Corporation; North American Stainless; on the Web at http://ia.ita.doc.gov/frn, Assistant Secretary for Import the United Steelworkers of America, under the heading ‘‘November 2004.’’ Administration. AFL-CIO; the local 3303 United Auto The paper copy and electronic version [FR Doc. E4–3278 Filed 11–19–04; 8:45 am] Workers; and Zanesville Armco of the Decision Memo are identical in Independent Organization, Inc. content. BILLING CODE 3510–DS–S (collectively ‘‘domestic interested Final Results of Reviews parties’’) within the deadline specified in section 315.218(d)(1)(i) of the The Department determines that revocation of the antidumping duty 1 See Initiation of Five-Year (‘‘Sunset’’) Reviews, orders on SSSS from Korea, Taiwan, 69 FR 30874 (June 1, 2004)(‘‘Initiation Notice’’).

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Department’s regulations. The domestic 7220.20.1010, 7220.20.1015, plus-or-minus 2.01 microns, and surface interested parties claimed interested 7220.20.1060, 7220.20.1080, glossiness of 200 to 700 percent Gs. party status under section 771(9)(C) and 7220.20.6005, 7220.20.6010, Suspension foil must be supplied in coil (D) of the Act, as domestic 7220.20.6015, 7220.20.6060, widths of not more than 407 mm, and manufacturers of SSSSC or certified 7220.20.6080, 7220.20.7005, with a mass of 225 kg or less. Roll marks unions whose workers are engaged in 7220.20.7010, 7220.20.7015, may only be visible on one side, with the production of SSSSC in the United 7220.20.7060, 7220.20.7080, no scratches of measurable depth. The States. On July 1, 2004, the Department 7220.20.8000, 7220.20.9030, material must exhibit residual stresses received a complete substantive 7220.20.9060, 7220.90.0010, of 2 mm maximum deflection, and response collectively from the domestic 7220.90.0015, 7220.90.0060, and flatness of 1.6 mm over 685 mm length. interested parties within the deadline 7220.90.0080. Although the HTS Certain stainless steel foil for specified in section 351.218(d)(3)(i) of subheadings are provided for automotive catalytic converters is also the Department’s regulations. We did convenience and customs purposes, the excluded from the scope of this order. not receive responses from any Department’s written description of the This stainless steel strip in coils is a respondent interested parties to this merchandise under review is specialty foil with a thickness of proceeding. As a result, pursuant to dispositive. between 20 and 110 microns used to section 751(c)(3)(B) of the Act and Excluded from the review of this produce a metallic substrate with a section 351.218(e)(1)(ii)(C)(2) of the order are the following: (1) Sheet and honeycomb structure for use in Department’s regulations, the strip that is not annealed or otherwise automotive catalytic converters. The Department determined to conduct an heat treated and pickled or otherwise steel contains, by weight, carbon of no expedited review of this order. descaled, (2) sheet and strip that is cut more than 0.030 percent, silicon of no to length, (3) plate (i.e., flat-rolled more than 1.0 percent, manganese of no Scope of the Order stainless steel products of a thickness of more than 1.0 percent, chromium of For purposes of this review, the 4.75 mm or more), (4) flat wire (i.e., between 19 and 22 percent, aluminum products covered are certain stainless cold-rolled sections, with a prepared of no less than 5.0 percent, phosphorus steel sheet and strip in coils. Stainless edge, rectangular in shape, of a width of of no more than 0.045 percent, sulfur of steel is an alloy steel containing, by not more than 9.5 mm), and (5) razor no more than 0.03 percent, lanthanum weight, 1.2 percent or less of carbon and blade steel. Razor blade steel is a flat- of less than 0.002 or greater than 0.05 10.5 percent or more of chromium, with rolled product of stainless steel, not percent, and total rare earth elements of or without other elements. The subject further worked than cold-rolled (cold- more than 0.06 percent, with the sheet and strip is a flat-rolled product in reduced), in coils, of a width of not balance iron. Permanent magnet iron- coils that is greater than 9.5 mm in more than 23 mm and a thickness of chromium-cobalt alloy stainless strip is width and less than 4.75 mm in 0.266 mm or less, containing, by weight, also excluded from the scope of this thickness, and that is annealed or 12.5 to 14.5 percent chromium, and order. This ductile stainless steel strip otherwise heat treated and pickled or certified at the time of entry to be used contains, by weight, 26 to 30 percent otherwise descaled. The subject sheet in the manufacture of razor blades. See chromium, and 7 to 10 percent cobalt, and strip may also be further processed chapter 72 of the HTS, ‘‘Additional U.S. with the remainder of iron, in widths (e.g., cold-rolled, polished, aluminized, Note’’ 1(d). 228.6 mm or less, and a thickness coated, etc.) provided that it maintains Flapper valve steel is also excluded between 0.127 and 1.270 mm. It exhibits the specific dimensions of sheet and from the scope of the order. This magnetic remanence between 9,000 and strip following such processing. The product is defined as stainless steel strip 12,000 gauss, and a coercivity of merchandise subject to this order is in coils containing, by weight, between between 50 and 300 oersteds. This 0.37 and 0.43 percent carbon, between currently classifiable in the Harmonized product is most commonly used in 1.15 and 1.35 percent molybdenum, and Tariff Schedule of the United States electronic sensors and is currently between 0.20 and 0.80 percent (‘‘HTS’’) at subheadings: 7219.13.0031, available under proprietary trade names manganese. This steel also contains, by 3 7219.13.0051, 7219.13.0071, such as ‘‘Arnokrome III.’’ weight, phosphorus of 0.025 percent or Certain electrical resistance alloy steel 7219.1300.812, 7219.14.0030, less, silicon of between 0.20 and 0.50 7219.14.0065, 7219.14.0090, is also excluded from the scope of this percent, and sulfur of 0.020 percent or 7219.32.0005, 7219.32.0020, order. This product is defined as a non- less. The product is manufactured by 7219.32.0025, 7219.32.0035, magnetic stainless steel manufactured to means of vacuum arc remelting, with American Society of Testing and 7219.32.0036, 7219.32.0038, inclusion controls for sulphide of no 7219.32.0042, 7219.32.0044, Materials (ASTM) specification B344 more than 0.04 percent and for oxide of and containing, by weight, 36 percent 7219.33.0005, 7219.33.0020, no more than 0.05 percent. Flapper 7219.33.0025, 7219.33.0035, nickel, 18 percent chromium, and 46 valve steel has a tensile strength of percent iron, and is most notable for its 7219.33.0036, 7219.33.0038, between 210 and 300 ksi, yield strength 7219.33.0042, 7219.33.0044, resistance to high temperature of between 170 and 270 ksi, plus or corrosion. It has a melting point of 1390 7219.34.0005, 7219.34.0020, minus 8 ksi, and a hardness (Hv) of 7219.34.0025, 7219.34.0030, degrees Celsius and displays a creep between 460 and 590. Flapper valve rupture limit of 4 kilograms per square 7219.34.0035, 7219.35.0005, steel is most commonly used to produce 7219.35.0015, 7219.35.0030, millimeter at 1000 degrees Celsius. This specialty flapper valves in compressors. steel is most commonly used in the 7219.35.0035, 7219.90.0010, Also excluded is a product referred to 7219.90.0020, 7219.90.0025, production of heating ribbons for circuit as suspension foil, a specialty steel breakers and industrial furnaces, and in 7219.90.0060, 7219.90.0080, product used in the manufacture of 7220.12.1000, 7220.12.5000, rheostats for railway locomotives. The suspension assemblies for computer product is currently available under disk drives. Suspension foil is described 2 Due to changes to the HTS numbers in 2001, proprietary trade names such as ‘‘Gilphy 7219.13.0030, 7219.13.0050, 7219.13.0070, and as 302/304 grade or 202 grade stainless 7219.13.0080 are now 7219.13.0031, 7219.13.0051, steel of a thickness between 14 and 127 3 ’’Arnokrome III’’ is a trademark of the Arnold 7219.13.0071, and 7219.13.0081, respectively. microns, with a thickness tolerance of Engineering Company.

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36.’’ 4 Certain martensitic precipitation- 0.20 and 0.50 percent, and sulfur of no APO is a violation which is subject to hardenable stainless steel is also more than 0.020 percent. This product sanction. excluded from the scope of this order. is supplied with a hardness of more We are issuing and publishing the This high-strength, ductile stainless than Hv 500 guaranteed after customer results and notice in accordance with steel product is designated under the processing, and is supplied as, for sections 751(c), 752, and 777(i)(1) of the Unified Numbering System (UNS) as example, ‘‘GIN6’’.7 Act. S45500-grade steel, and contains, by Dated: November 15, 2004. weight, 11 to 13 percent chromium, and Analysis of Comments Received James J. Jochum, 7 to 10 percent nickel. Carbon, All issues raised in these reviews are manganese, silicon and molybdenum Assistant Secretary for Import addressed in the ‘‘Issues and Decision Administration. each comprise, by weight, 0.05 percent Memorandum’’ (‘‘Decision Memo’’) [FR Doc. E4–3280 Filed 11–19–04; 8:45 am] or less, with phosphorus and sulfur from Ronald K. Lorentzen, Acting BILLING CODE 3510–DS–P each comprising, by weight, 0.03 Director, Office of Policy, Import percent or less. This steel has copper, Administration, to James J. Jochum, niobium, and titanium added to achieve Assistant Secretary for Import DEPARTMENT OF COMMERCE aging, and will exhibit yield strengths as Administration, dated November 15, high as 1700 Mpa and ultimate tensile 2004, which is hereby adopted by this International Trade Administration strengths as high as 1750 Mpa after notice. The issues discussed in the [A–428–825] aging, with elongation percentages of 3 Decision Memo include the likelihood percent or less in 50 mm. It is generally of continuation or recurrence of provided in thicknesses between 0.635 Stainless Steel Sheet and Strip in Coils dumping and the magnitude of the From Germany; Final Results of the and 0.787 mm, and in widths of 25.4 margins likely to prevail if the order mm. This product is most commonly Expedited Sunset Review of the were to be revoked. Parties can find a Antidumping Duty Order used in the manufacture of television complete discussion of all issues raised tubes and is currently available under in this review and the corresponding AGENCY: Import Administration, proprietary trade names such as recommendations in this public International Trade Administration, 5 ‘‘Durphynox 17.’’ memorandum which is on file in room Department of Commerce. Finally, three specialty stainless steels B–099 of the main Commerce Building. ACTION: Notice of final results of typically used in certain industrial expedited sunset review of the blades and surgical and medical In addition, a complete version of the antidumping duty order on stainless instruments are also excluded from the Decision Memo can be accessed directly steel sheet and strip in coils from scope of this order. These include on the Web at http://ia.ita.doc.gov/frn, Germany. stainless steel strip in coils used in the under the heading ‘‘November 2004.’’ The paper copy and electronic version production of textile cutting tools (e.g., SUMMARY: On June 1, 2004, the carpet knives).6 This steel is similar to of the Decision Memorandum are identical in content. Department of Commerce (‘‘the AISI grade 420 but containing, by Department’’) initiated a sunset review weight, 0.5 to 0.7 percent of Final Results of Reviews of the antidumping duty order on molybdenum. The steel also contains, stainless steel sheet and strip in coils We determine that revocation of the by weight, carbon of between 1.0 and (‘‘SSSSC’’) from Germany pursuant to antidumping duty order on SSSSC from 1.1 percent, sulfur of 0.020 percent or section 751(c) of the Tariff Act of 1930, Italy would be likely to lead to less, and includes between 0.20 and as amended (‘‘the Act’’). On the basis of continuation or recurrence of dumping 0.30 percent copper and between 0.20 a notice of intent to participate and an at the following percentage weighted- and 0.50 percent cobalt. This steel is adequate substantive response filed on average percentage margins: sold under proprietary names such as behalf of domestic interested parties and ‘‘GIN4 Mo.’’ The second excluded Weighted inadequate responses from respondent stainless steel strip in coils is similar to Manufacturers/Exporters/Pro- Average interested parties, the Department AISI 420–J2 and contains, by weight, ducers Margin conducted an expedited (120-day) carbon of between 0.62 and 0.70 (percent) sunset review. As a result of this sunset percent, silicon of between 0.20 and review, the Department finds that ThyssenKrupp Acciai Speciali 0.50 percent, manganese of between revocation of the antidumping duty 0.45 and 0.80 percent, phosphorus of no Terni, S.A...... 11.23 All Others ...... 11.23 order would be likely to lead to more than 0.025 percent and sulfur of continuation or recurrence of dumping. no more than 0.020 percent. This steel This notice also serves as the only The dumping margins are identified in has a carbide density on average of 100 the Final Results of Review section of carbide particles per 100 square reminder to parties subject to administrative protective orders this notice. microns. An example of this product is EFFECTIVE DATE: November 22, 2004. ‘‘GIN5’’ steel. The third specialty steel (‘‘APO’’) of their responsibility FOR FURTHER INFORMATION CONTACT: has a chemical composition similar to concerning the return or destruction of Hilary E. Sadler, Esq., Office of Policy AISI 420 F, with carbon of between 0.37 proprietary information disclosed under for Import Administration, International and 0.43 percent, molybdenum of APO in accordance with 19 CFR Trade Administration, U.S. Department between 1.15 and 1.35 percent, but 351.305 of the Department’s regulations. of Commerce, 14th Street & Constitution lower manganese of between 0.20 and Timely notification of the return or Avenue, NW., Washington, DC 20230; 0.80 percent, phosphorus of no more destruction of APO materials or telephone: (202) 482–4340. than 0.025 percent, silicon of between conversion to judicial protective order is hereby requested. Failure to comply SUPPLEMENTARY INFORMATION: with the regulations and terms of an 4 ’’Gilphy 36’’ is a trademark of Imphy, S.A. Background 5 ’’Durphynox 17’’ is a trademark of Imphy, S.A. 6 This list of uses is illustrative and provided for 7 ‘‘GIN4 Mo,’’ ‘‘GIN5,’’ and ‘‘GIN6’’ are the On June 1, 2004, the Department descriptive purposes only. proprietary grades of Hitachi Metals America, Ltd. published the notice of initiation of the

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sunset review of the antidumping duty 7219.32.0036, 7219.32.0038, strength of between 210 and 300 ksi, order on SSSSC from Germany.1 On 7219.32.0042, 7219.32.0044, yield strength of between 170 and 270 June 16, 2004, the Department received 7219.33.0005, 7219.33.0020, ksi, plus or minus 8 ksi, and a hardness a Notice of Intent to Participate from 7219.33.0025, 7219.33.0035, (Hv) of between 460 and 590. Flapper Nucor Corporation; Allegheny Ludlum 7219.33.0036, 7219.33.0038, valve steel is most commonly used to Corporation; North American Stainless; 7219.33.0042, 7219.33.0044, produce specialty flapper valves in the United Steelworkers of America, 7219.34.0005, 7219.34.0020, compressors. AFL–CIO; the local 3303 United Auto 7219.34.0025, 7219.34.0030, Also excluded is a product referred to Workers; and Zanesville Armco 7219.34.0035, 7219.35.0005, as suspension foil, a specialty steel Independent Organization, Inc. 7219.35.0015, 7219.35.0030, product used in the manufacture of (collectively ‘‘domestic interested 7219.35.0035, 7219.90.0010, suspension assemblies for computer parties’’) within the deadline specified 7219.90.0020, 7219.90.0025, disk drives. Suspension foil is described in section 315.218(d)(1)(i) of the 7219.90.0060, 7219.90.0080, as 302/304 grade or 202 grade stainless Department’s regulations. The domestic 7220.12.1000, 7220.12.5000, steel of a thickness between 14 and 127 interested parties claimed interested 7220.20.1010, 7220.20.1015, microns, with a thickness tolerance of party status under section 771(9)(C) and 7220.20.1060, 7220.20.1080, plus-or-minus 2.01 microns, and surface (D) of the Act, as domestic 7220.20.6005, 7220.20.6010, glossiness of 200 to 700 percent Gs. manufacturers of SSSSC or certified 7220.20.6015, 7220.20.6060, Suspension foil must be supplied in coil unions whose workers are engaged in 7220.20.6080, 7220.20.7005, widths of not more than 407 mm, and the production of SSSSC in the United 7220.20.7010, 7220.20.7015, with a mass of 225 kg or less. Roll marks States. On July 1, 2004, the Department 7220.20.7060, 7220.20.7080, may only be visible on one side, with received a complete substantive 7220.20.8000, 7220.20.9030, no scratches of measurable depth. The response from the domestic interested 7220.20.9060, 7220.90.0010, material must exhibit residual stresses parties within the deadline specified in 7220.90.0015, 7220.90.0060, and of 2 mm maximum deflection, and section 351.218(d)(3)(i) of the 7220.90.0080. Although the HTS flatness of 1.6 mm over 685 mm length. Department’s regulations. We did not subheadings are provided for Certain stainless steel foil for receive responses from any respondent convenience and customs purposes, the automotive catalytic converters is also interested parties to this proceeding. As Department’s written description of the excluded from the scope of this order. a result, pursuant to section 751(c)(3)(B) merchandise under review is This stainless steel strip in coils is a of the Act and section dispositive. specialty foil with a thickness of 351.218(e)(1)(ii)(C)(2) of the between 20 and 110 microns used to Excluded from the review of this Department’s regulations, the produce a metallic substrate with a order are the following: (1) Sheet and Department determined to conduct an honeycomb structure for use in strip that is not annealed or otherwise expedited review of this order. automotive catalytic converters. The heat treated and pickled or otherwise steel contains, by weight, carbon of no Scope of the Order descaled, (2) sheet and strip that is cut more than 0.030 percent, silicon of no For purposes of this review, the to length, (3) plate (i.e., flat-rolled more than 1.0 percent, manganese of no products covered are certain stainless stainless steel products of a thickness of more than 1.0 percent, chromium of steel sheet and strip in coils. Stainless 4.75 mm or more), (4) flat wire (i.e., between 19 and 22 percent, aluminum steel is an alloy steel containing, by cold-rolled sections, with a prepared of no less than 5.0 percent, phosphorus weight, 1.2 percent or less of carbon and edge, rectangular in shape, of a width of of no more than 0.045 percent, sulfur of 10.5 percent or more of chromium, with not more than 9.5 mm), and (5) razor no more than 0.03 percent, lanthanum or without other elements. The subject blade steel. Razor blade steel is a flat- of less than 0.002 or greater than 0.05 sheet and strip is a flat-rolled product in rolled product of stainless steel, not percent, and total rare earth elements of coils that is greater than 9.5 mm in further worked than cold-rolled (cold- more than 0.06 percent, with the width and less than 4.75 mm in reduced), in coils, of a width of not balance iron. Permanent magnet iron- thickness, and that is annealed or more than 23 mm and a thickness of chromium-cobalt alloy stainless strip is otherwise heat treated and pickled or 0.266 mm or less, containing, by weight, also excluded from the scope of this otherwise descaled. The subject sheet 12.5 to 14.5 percent chromium, and order. This ductile stainless steel strip and strip may also be further processed certified at the time of entry to be used contains, by weight, 26 to 30 percent (e.g., cold-rolled, polished, aluminized, in the manufacture of razor blades. See chromium, and 7 to 10 percent cobalt, coated, etc.) provided that it maintains chapter 72 of the HTS, ‘‘Additional U.S. with the remainder of iron, in widths the specific dimensions of sheet and Note’’ 1(d). Flapper valve steel is also 228.6 mm or less, and a thickness strip following such processing. The excluded from the scope of the order. between 0.127 and 1.270 mm. It exhibits merchandise subject to this order is This product is defined as stainless steel magnetic remanence between 9,000 and currently classifiable in the Harmonized strip in coils containing, by weight, 12,000 gauss, and a coercivity of Tariff Schedule of the United States between 0.37 and 0.43 percent carbon, between 50 and 300 oersteds. This (‘‘HTS’’) at subheadings: 7219.13.0031, between 1.15 and 1.35 percent product is most commonly used in 7219.13.0051, 7219.13.0071, molybdenum, and between 0.20 and electronic sensors and is currently 7219.1300.812, 7219.14.0030, 0.80 percent manganese. This steel also available under proprietary trade names 7219.14.0065, 7219.14.0090, contains, by weight, phosphorus of such as ‘‘Arnokrome III.’’ 3 7219.32.0005, 7219.32.0020, 0.025 percent or less, silicon of between Certain electrical resistance alloy steel 7219.32.0025, 7219.32.0035, 0.20 and 0.50 percent, and sulfur of is also excluded from the scope of this 0.020 percent or less. The product is order. This product is defined as a non- 1 See Initiation of Five-Year (‘‘Sunset’’) Reviews, manufactured by means of vacuum arc magnetic stainless steel manufactured to 69 FR 30874 (June 1, 2004)(‘‘Initiation Notice’’). remelting, with inclusion controls for American Society of Testing and 2 Due to changes to the HTS numbers in 2001, sulphide of no more than 0.04 percent 7219.13.0030, 7219.13.0050, 7219.13.0070, and 7219.13.0080 are now 7219.13.0031, 7219.13.0051, and for oxide of no more than 0.05 3 ‘‘Arnokrome III’’ is a trademark of the Arnold 7219.13.0071, and 7219.13.0081, respectively. percent. Flapper valve steel has a tensile Engineering Company.

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Materials (ASTM) specification B344 percent, silicon of between 0.20 and This notice also serves as the only and containing, by weight, 36 percent 0.50 percent, manganese of between reminder to parties subject to nickel, 18 percent chromium, and 46 0.45 and 0.80 percent, phosphorus of no administrative protective orders percent iron, and is most notable for its more than 0.025 percent and sulfur of (‘‘APO’’) of their responsibility resistance to high temperature no more than 0.020 percent. This steel concerning the return or destruction of corrosion. It has a melting point of 1390 has a carbide density on average of 100 proprietary information disclosed under degrees Celsius and displays a creep carbide particles per 100 square APO in accordance with 19 CFR rupture limit of 4 kilograms per square microns. An example of this product is 351.305 of the Department’s regulations. millimeter at 1000 degrees Celsius. This ‘‘GIN5’’ steel. The third specialty steel Timely notification of the return or steel is most commonly used in the has a chemical composition similar to destruction of APO materials or production of heating ribbons for circuit AISI 420 F, with carbon of between 0.37 conversion to judicial protective order is breakers and industrial furnaces, and in and 0.43 percent, molybdenum of hereby requested. Failure to comply rheostats for railway locomotives. The between 1.15 and 1.35 percent, but with the regulations and terms of an product is currently available under lower manganese of between 0.20 and APO is a violation which is subject to proprietary trade names such as ‘‘Gilphy 0.80 percent, phosphorus of no more sanction. 36.’’ 4 than 0.025 percent, silicon of between We are issuing and publishing these Certain martensitic precipitation- 0.20 and 0.50 percent, and sulfur of no final results and notice in accordance hardenable stainless steel is also more than 0.020 percent. This product with sections 751(c), 752, and 777(i)(1) excluded from the scope of this order. is supplied with a hardness of more of the Act. This high-strength, ductile stainless than Hv 500 guaranteed after customer steel product is designated under the Dated: November 15, 2004. processing, and is supplied as, for James J. Jochum, Unified Numbering System (UNS) as example, ‘‘GIN6’’. 7 S45500-grade steel, and contains, by Assistant Secretary for Import weight, 11 to 13 percent chromium, and Analysis of Comments Received Administration. 7 to 10 percent nickel. Carbon, All issues raised in these reviews are [FR Doc. E4–3281 Filed 11–19–04; 8:45 am] manganese, silicon and molybdenum addressed in the ‘‘Issues and Decision BILLING CODE 3510–DS–P each comprise, by weight, 0.05 percent Memorandum’’ (‘‘Decision Memo’’) or less, with phosphorus and sulfur from Ronald K. Lorentzen, Acting DEPARTMENT OF COMMERCE each comprising, by weight, 0.03 Director, Office of Policy, Import percent or less. This steel has copper, Administration, to James J. Jochum, International Trade Administration niobium, and titanium added to achieve Assistant Secretary for Import aging, and will exhibit yield strengths as Administration, dated November 15, [C–580–835] high as 1700 Mpa and ultimate tensile 2004, which is hereby adopted by this Stainless Steel Sheet and Strip in Coils strengths as high as 1750 Mpa after notice. The issues discussed in the From Korea; Extension of Time Limit aging, with elongation percentages of 3 Decision Memo include the likelihood for the Final Results of Sunset Review percent or less in 50 mm. It is generally of continuation or recurrence of of Countervailing Duty Order provided in thicknesses between 0.635 dumping and the magnitude of the and 0.787 mm, and in widths of 25.4 margins likely to prevail if the order AGENCY: Import Administration, mm. This product is most commonly were to be revoked. Parties can find a International Trade Administration, used in the manufacture of television complete discussion of all issues raised Department of Commerce. tubes and is currently available under in this review and the corresponding ACTION: Notice of extension of time limit proprietary trade names such as recommendations in this public for the final results of sunset review of ‘‘Durphynox 17.’’ 5 memorandum which is on file in room Finally, three specialty stainless steels countervailing duty order: stainless steel B–099 of the main Commerce Building. sheet and strip in coils from Korea. typically used in certain industrial In addition, a complete version of the blades and surgical and medical Decision Memo can be accessed directly SUMMARY: The Department of Commerce instruments are also excluded from the on the Web at http://ia.ita.doc.gov/frn, (‘‘the Department’’) is extending the scope of this order. These include under the heading ‘‘November 2004.’’ time limit for its final results in the first stainless steel strip in coils used in the The paper copy and electronic version sunset review of the countervailing duty production of textile cutting tools (e.g., of the Decision Memo are identical in order on stainless steel sheet and strip carpet knives).6 This steel is similar to content. in coils (‘‘SSSS’’). The Department AISI grade 420 but containing, by Final Results of Reviews intends to issue final results of this weight, 0.5 to 0.7 percent of sunset review on or about December 10, molybdenum. The steel also contains, We determine that revocation of the 2004. by weight, carbon of between 1.0 and antidumping duty order on SSSSC from EFFECTIVE DATE: November 22, 2004. 1.1 percent, sulfur of 0.020 percent or Germany would be likely to lead to FOR FURTHER INFORMATION CONTACT: less, and includes between 0.20 and continuation or recurrence of dumping 0.30 percent copper and between 0.20 at the following percentage weighted- Martha Douthit, Import Administration, and 0.50 percent cobalt. This steel is average percentage margins: International Trade Administration, sold under proprietary names such as U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., ‘‘GIN4 Mo.’’ The second excluded Manufacturers/exporters/pro- Weighted av- stainless steel strip in coils is similar to erage margin Washington, DC 20230; telephone: (202) ducers (percent) AISI 420–J2 and contains, by weight, 482–5050. carbon of between 0.62 and 0.70 TKN ...... 13.48 Extension of Final Results of Reviews All Others ...... 13.48 4 ‘‘Gilphy 36’’ is a trademark of Imphy, S.A. On June 1, 2004, the Department 5 ‘‘Durphynox 17’’ is a trademark of Imphy, S.A. initiated a sunset review of the 6 This list of uses is illustrative and provided for 7 ‘‘GIN4 Mo,’’ ‘‘GIN5,’’ and ‘‘GIN6’’ are the countervailing duty order on SSSS from descriptive purposes only. proprietary grades of Hitachi Metals America, Ltd. Korea. See Initiation of Five-Year

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(Sunset) Reviews, 69 FR 30874 (June 1, the briefing package. The briefing SUPPLEMENTARY INFORMATION: Based on 2004). The Department, in this package is available on the internet at the public comments received, the DAR proceeding, determined that it would the CPSC Web site: http:// Council will consider to what extent conduct an expedited sunset review of www.cpsc.gov/library/foia/foia05/brief/ revisions (if any) to SF 1443 are needed. this order based on inadequate briefing.html. Any such revisions to the form will be responses to the notice of initiation from The meeting is open to the public published in the Federal Register as a respondent interested parties. The although the Commission will not be proposed rule for public comment. Department’s final results of this review taking comments at that time. As Input may include, but is not limited to, was originally scheduled for September required by the FFA, a full opportunity the following areas: 29, 2004 and was rescheduled for of public comment, including 1. Any revisions necessary to improve November 15, 2004. presentation of oral testimony, will be consistency between the form and the Pursuant to section 751(c)(5)(B) of the provided should the Commission elect Progress Payments clause at 52.232–16 Act, the administrating authority may to proceed with the notice of proposed of the Federal Acquisition Regulation. extend the period for issuing final rulemaking. 2. Simplification of the form and its results by not more than 90 days if the For a recorded message containing the instructions. administrating authority determines that latest agenda information, call (301) 3. The impact any potential changes a sunset review is extraordinarily 504–7948. to the form may have on contractor and/ complicated. A review may be treated as CONTACT PERSON FOR ADDITIONAL or Government systems. extraordinarily complicated if the issues INFORMATION: Todd A. Stevenson, Office Michele P. Peterson, to be considered are complex. Section of the Secretary, 4330 East West Executive Editor, Defense Acquisition 751(c)(5)(C)(ii) of the Act. In this instant Highway, Bethesda, MD 20207, (301) Regulations Council. review, the Department, needs 504–7923. [FR Doc. 04–25810 Filed 11–19–04; 8:45 am] additional time to consider complex Dated: November 18, 2004. BILLING CODE 5001–08–P issues related to the appropriate net Todd A. Stevenson, countervailable subsidy rate likely to Secretary. prevail if the order is revoked, which [FR Doc. 04–25970 Filed 11–18–04; 2:40 pm] DEPARTMENT OF DEFENSE the Department will provide to the International Trade Commission. Thus, BILLING CODE 6355–01–M Office of the Secretary the Department intends to issue the final results on or about December 10, Submission for OMB Review; 2004, in accordance with sections DEPARTMENT OF DEFENSE Comment Request 751(c)(5)(B) and 751(c)(5)(C)(i), (ii) and Contract Financing: Contractor’s ACTION: Notice. (iii) of the Tariff Act of 1930, as Request for Progress Payments amended. The Department of Defense has Dated: November 15, 2004. AGENCY: Department of Defense (DoD). submitted to OMB for clearance, the James J. Jochum, ACTION: Request for public comments. following proposal for collection of information under the provisions of the Assistant Secretary for Import SUMMARY: The Defense Acquisition Administration. Paperwork Reduction Act (44 U.S.C. Regulations (DAR) Council is currently Chapter 35). [FR Doc. E4–3279 Filed 11–19–04; 8:45 am] reviewing DoD’s use of Standard Form DATES: Consideration will be given to all BILLING CODE 3510–DS–P (SF) 1443, Contractor’s Request for comments received by December 22, Progress Payments. As part of this 2004. review, the DAR Council would like to Title, Form, and OMB Number: CONSUMER PRODUCT SAFETY hear the views of interested parties on COMMISSION Customer Comment Card; Air Force what improvements could be made to Form 3211; OMB Number 0701–0146. the form, including the instructions, for Sunshine Act Meeting Type of Request: Extension. use on DoD contracts. Respondents are Number of Respondents: 200. TIME AND DATE: Thursday, December 9, also encouraged to describe any Responses Per Respondent: 1. 2004, 10 a.m. problems they have experienced in Annual Responses: 200. using the form on DoD contracts. Average Burden Per Response: 5 LOCATION: Room 420, Bethesda Towers, DATES: Submit written comments to the minutes. 4330 East West Highway, Bethesda, Annual Burden Hours: 16.67. Maryland. address shown below on or before January 6, 2005. Needs and Uses: Each guest of Air STATUS: Open to the public. ADDRESSES: Submit comments to: Office Force Lodging and its contract lodging MATTER TO BE CONSIDERED: of the Director, Defense Procurement operations is provided access to Air Open Flame Flammability Standards and Acquisition Policy, Policy Force Form 3211. The Air Force Form for Mattresses, Mattress and Directorate, Attn: Mr. David Capitano, 3211 gives each guest the opportunity to Foundation Sets, and Bedclothes Room 3C838, 3000 Defense Pentagon, comment on facilities and services Washington, DC 20301–3000. received. Completion and return of the The staff will brief the Commission on form is optional. The information the draft notice of proposed rulemaking Comments may also be submitted by fax at (703) 614–0719 (Attn: Mr. David collection requirement is necessary for addressing flammability (open flame) of Wing leadership to assess the mattresses and foundations under the Capitano), or by e-mail at [email protected]. effectiveness of their Lodging program. Flammable Fabrics Act (FFA) as Affected Public: Individuals or described in the November 1, 2004, staff FOR FURTHER INFORMATION CONTACT: Mr. households; business or other for-profit. briefing package. The staff will also brief David Capitano, DPAP Policy Frequency: On occasion. the Commission on options for Directorate, by telephone at (703) 847– Respondent’s Obligation: Voluntary. addressing bedclothes involvement in 7486, or by e-mail at OMB Desk Officer: Ms. Jacqueline mattress/bedding fires as discussed in [email protected]. Zeiher.

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Written comments and Frequency: On Occasion. committing a civil or moral offense. The recommendations on the proposed Respondent’s Obligation: Required to respondents may provide character information collection should be sent to obtain or retain a benefit. information which would allow the Ms. Zeiher at the Office of Management OMB Desk Officer: Ms. Jacqueline applicant to be considered for a waiver and Budget, Desk Officer for DoD, Room Zeiher. and therefore continue the application 10236, New Executive Office Building, Written comments and process. Washington, DC 20503. recommendations on the proposed Affected Public: Individuals or DOD Clearance Officer: Mr. Robert information collection should be sent to households; business or other for-profit; Cushing. Ms. Zeiher at the Office of Management Federal government; State, local or Written requests for copies of the and Budget, Desk Officer for DoD, Room tribal government. information collection proposal should 10236, New Executive Office Building, Frequency: On Occasion. be sent to Mr. Cushing, WHS/ESCD/ Washington, DC 20503. Respondent’s Obligation: Voluntary. Information Management Division, 1225 DOD Clearance Officer: Ms. Patricia OMB Desk Officer: Ms. Jacqueline South Clark Street, Suite 504, Arlington, Toppings. Zeiher. VA 22202–4326. Written requests for copies of the Written comments and Dated: November 15, 2004. information collection proposal should recommendations on the proposed Patricia L. Toppings, be sent to Ms. Toppings, WHS/ESCD/ information collection should be sent to Alternate OSD Federal Register Liaison Information Management Division, 1225 Ms. Zeiher at the Office of Management Officer, Department of Defense. South Clark Street, Suite 504, Arlington, and Budget, Desk Officer for DoD, Room [FR Doc. 04–25754 Filed 11–19–04; 8:45 am] VA 22202–4326. 10236, New Executive Office Building, Washington, DC 20503. BILLING CODE 5001–06–M Dated: November 12, 2004. DOD Clearance Officer: Ms. Patricia Patricia L. Toppings, Toppings. Alternate OSD Federal Register Liaison Written requests for copies of the DEPARTMENT OF DEFENSE Officer, Department of Defense. information collection proposal should [FR Doc. 04–25755 Filed 11–19–04; 8:45 am] Office of the Secretary be sent to Ms. Toppings, WHS/ESCD/ BILLING CODE 5001–06–M Information Management Division, 1225 Submission for OMB Review; South Clark Street, Suite 504, Arlington, Comment Request VA 22202–4326. DEPARTMENT OF DEFENSE ACTION: Notice. Dated: November 12, 2004. Office of the Secretary Patricia L. Toppings, The Department of Defense has Alternate OSD Federal Register Liaison submitted to OMB for clearance, the Submission for OMB Review; Officer, Department of Defense. Comment Request following proposal for collection of [FR Doc. 04–25756 Filed 11–19–04; 8:45 am] information under the provisions of the BILLING CODE 5001–06–M Paperwork Reduction Act (44 U.S.C. ACTION: Notice. Chapter 35). The Department of Defense has DATES: Consideration will be given to all submitted to OMB for clearance, the DEPARTMENT OF DEFENSE comments received by December 22, following proposal for collection of 2004. information under the provisions of the Office of the Secretary Title, Form, and OMB Number: Paperwork Reduction Act (44 U.S.C. Proposed Collection; Comment Request for Verification of Birth; DD Chapter 35). Form 372; OMB Control Number 0704– Request DATES: 0006. Consideration will be given to all AGENCY: DoD, Office of the Under Type of Request: Extension. comments received by December 22, Number of Respondents: 100,000. 2004. Secretary of Defense (Personnel and Responses Per Respondent: 1. Title, Form, and OMB Number: Readiness). Annual Responses: 100,000. Request for Reference; DD Form 370; ACTION: Notice. Average Burden Per Response: 5 OMB Control Number 0704–0167. minutes. Type of Request: Extension. In compliance with section Annual Burden Hours: 8,300. Number of Respondents: 43,000. 3506(c)(2)(A) of the Paperwork Needs and Uses: Title 10, U.S.C. 505, Responses Per Respondent: 1. Reduction Act of 1995, the Office of the 532, 3253, 5013, and 8253, require Annual Responses: 43,000. Under Secretary of Defense (Personnel applicants meet minimum and Average Burden Per Response: 10 and Readiness) announces the following maximum age and citizenship minutes. proposed reinstatement of a public requirements for enlistment into the Annual Burden Hours: 7,181. information collection and seeks public Armed Forces. If an applicant is unable Needs and Uses: Title 10 U.S.C. 504, comment on the provisions thereof. to provide a birth certificate, the 505, 508, and 12102, establishes Comments are invited on: (a) Whether recruiter will forward a DD Form 372, minimum standards for enlistment into the proposed collection of information ‘‘Request for Verification of Birth,’’ to a the Armed Forces. This information is necessary for the proper performance state or local agency requesting collection is for reference information of the functions of the agency, including verification of the applicant’s birth date. on individuals applying for enlistment whether the information shall have This verification of birth ensures that in the Armed Forces of the United practical utility; (b) the accuracy of the the applicant does not fall outside the States who require a waiver. The form agency’s estimate of burden of the age limitations, and that the applicant’s associated with this information proposed information collection; (c) place of birth supports the citizenship collection, DD 370, ‘‘Request for ways to enhance the quality, utility, and status claimed by the applicant. Reference,’’ is used by recruiters to clarity of the information to be Affected Public: State, local or tribal obtain reference information on collected; and (d) ways to minimize the government. applicants who have admitted burden of the information collection on

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respondents, including through the use order to obtain this identification card, DEPARTMENT OF DEFENSE of automated collection techniques or an applicant is required to go to an other forms of information technology. identification card issuing facility and Office of the Secretary DATES: Consideration will be given to all update the DD Form 1172, ‘‘Application Transformation Advisory Group comments received by January 21, 2005. for Uniformed Services Identification Card—DEERS Enrollment.’’ The Meeting of the U.S. Joint Forces ADDRESSES: Written comments and Command recommendations on the proposed sponsor, or person authorized to sign information collection should be sent to the DD Form 1172 in accordance with AGENCY: Department of Defense, the Office of the Under Secretary of the criteria established in DoD USJFCOM. Defense (Personnel and Readiness), Instruction 1000.13, provides ACTION: Notice of closed meeting. ODUSD (PI)/Defense Human Resources appropriate dependent information and Activity, ATTN: Ms. Heidi Boyd, 4040 verification, i.e., birth certificate, SUMMARY: The Transformation Advisory Fairfax Boulevard, Suite 200, Arlington marriage license, etc. The information is Group (TAG) will meet in a closed VA 22203. entered into an automated system by the session on November 30 and December 1, 2004. The mission of the TAG is to FOR FURTHER INFORMATION CONTACT: To identification card issuing official and request more information on this reviewed by the applicant. Once the provide timely on scientific, technical, proposed information collection or to applicant has reviewed the information, and policy-related issues to the obtain a copy of the proposal and the sponsor, or person authorized to Commander, U.S. Joint Forces associated collection instruments, sign the form, will sign the system- Command as he develops and executes please write to the above address or call printed DD Form 1172. The DD Form the Department of Defense strategy. Full (703) 696–0404. 1172 must be signed by both the development of the topics will require Title, Associated Form and OMB sponsor (or person authorized to sign discussion of information classified in Control Number: Application for the form) and the verifying official. The accordance with Executive Order 12958, Uniformed Services Identification person authorized to sign the form must dated April 17, 1995, as amended March Card—DEERS Enrollment, DD Form sign it in the presence of the verifying 25, 2003. Access to this information 1172, OMB Number 0704–0020. official. On those rare occasions where must be strictly limited to personnel having the requisite security clearances Needs and Uses: This information the sponsor (or person authorized to and specific need-to-know. collection requirement is needed to sign the form) is unable to accompany Unauthorized disclosure of the obtain the necessary information to his/her dependent to the identification information to be discussed at the TAG authorize members of the Uniformed card issuing facility, the signature must meeting could have exceptionally grave Services, their spouses and dependents, be notarized in accordance with the impact on national defense. In and other authorized individuals certain criteria set forth in DoD Instruction benefits and privileges. These privileges accordance with Section 10(d) of the 1000.13 prior to verification by the Federal Advisory Committee Act (5 include health care, use of commissary, verifying official. This does not happen base exchange, and morale, welfare, and U.S.C. 552b(c), and 41 CFR 102–3.155, very often and does not create a this meeting will be closed. recreation facilities. This information significant increase in burden to the DATES: 30 November–01 December collection is needed to obtain the public. Once the DD Form 1172 has 2004. necessary data to determine eligibility, been properly signed, the form is taken to provide eligible individuals with an to the identification card issuing facility ADDRESSES: USJFCOM, 1562 Mtscher identification card for benefits and for issuance of the ID card. The date is Avenue, Suite 200, Norfolk, Virginia privileges administered by the transmitted to the Defense Manpower 23551–2488. Uniformed Services, and maintain a Data Center to be entered into the FOR FURTHER INFORMATION CONTACT: centralized database of eligible Defense Enrollment Eligibility Reporting Stephanie Roper-Burton, Executive individuals. System (DEERS) database. The Director, (757) 836–0965. Affected Public: Individuals or application is required to update the SUPPLEMENTARY INFORMATION: Jerome households. information once every four years or as Mahar, Joint Staff, (703) 614–6465. Annual Burden Hours: 281,092. changes occur, i.e., Reservist entering Number of Respondents: 1,623,246. Dated: October 29, 2004. Responses Per Respondent: 1. active duty or being released from Jeannette Owings-Ballard, activity duty, etc. Average Burden Per Response: 10 OSD Federal Register Liaison Officer, minutes. Respondent will be: Active duty, Department of Defense. Frequency: On occasion. reserve, and retired personnel of the [FR Doc. 04–25905 Filed 11–19–04; 8:45 am] SUPPLEMENTARY INFORMATION: Uniformed Services (Army, Navy, Air BILLING CODE 5001–06–P Force, Marine Corps, Coast Guard, U.S. Summary of Information Collection Public Health Service, and NOAA), and This information collection identifies their dependents; surviving dependents DEPARTMENT OF ENERGY those individuals eligible for the of deceased active duty, eligible former benefits and privileges authorized in spouses, and any eligible individual Federal Energy Regulatory sections 1061–1065, 1072–1074c, 1076a, who may be eligible for benefits Commission 1077, 1174a, 1175 and 1408 of title 10 associated with the issuance of an [Docket No. AC05–4–000] and issuance of the appropriate identification card. Uniformed Services Identification Dated: November 12, 2004. Sun River Electric Cooperative, Inc.; Cards. Notice of Request for Waiver The Uniformed Services Identification Patricia L. Toppings, Card is the key to authorized usage of Alternate OSD Federal Register, Liaison November 12, 2004. military health care, commissary, Officer, Department of Defense. On October 18, 2004, Sun River exchange privileges, and morale, [FR Doc. 04–25757 Filed 11–19–04; 8:45 am] Electric Cooperative, Inc. filed a request welfare, and recreation facilities. In BILLING CODE 5001–06–M for waiver of the Commission’s

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quarterly financial reporting listed in ascending order within each commissions within the region. The requirements to the Annual Report as docket classification. Midwest ISO also states that in addition, set forth in Commission Order No. 646 the filing has been electronically posted 1. Indigo Generation, LLC, Larkspur issued February 4, 2004, in Docket No. on the Midwest ISO’s Web site at http:/ Energy LLC, Wildflower Energy LP RM03–8–000. 106 FERC ¶ 61,113 /www.midwestiso.org under the heading (2004). [Docket No. ER01–1822–003] ‘‘Filings to FERC’’ for other interested Any person desiring to intervene or to Take notice that on November 8, parties in this matter. The Midwest ISO protest this filing must file in 2004, Indigo Generation LLC (Indigo further states that it will provide hard accordance with Rules 211 and 214 of Generation), Larkspur Energy LLC copies to any interested parties upon the Commission’s Rules of Practice and (Larkspur Energy) and Wildflower request. Procedure (18 CFR 385.211, 385.214). Energy LP (Wildflower Energy) Comment Date: 5 p.m. eastern time on Protests will be considered by the (collectively, the Wildflower Entities) November 29, 2004. Commission in determining the filed a notice of change in status in appropriate action to be taken, but will connection with the sale by InterGen 4. El Paso Electric Company not serve to make protestants parties to North America, Inc. of all of its equity [Docket No. ER05–193–000] the proceeding. Any person wishing to interests, which were indirectly held become a party must file a notice of through Wildflower Development LLC, Take notice that on November 8, intervention or motion to intervene, as in the Wildflower Entities, to Diamond 2004, El Paso Electric Company (EPE) appropriate. Such notices, motions, or Generating Corporation. Indigo states submitted a Notice of Cancellation of El protests must be filed on or before the that Larkspur Energy and Indigo Paso Electric Company Electric Rate comment date. Anyone filing a motion Generation, which are subsidiaries of Schedule No. 48, an Interruptible to intervene or protest must serve a copy Wildflower Energy, own and operate Transmission Service Agreement of that document on the Applicant and two natural gas-fired peaker plants with between Salt River Project Agricultural all the parties in this proceeding. an aggregate net generating capacity of Improvement and Power District and The Commission encourages 232 megawatts located in Southern EPE. EPE requests an effective date of electronic submission of protests and California. January 1, 2005. interventions in lieu of paper using the Comment Date: 5 p.m. eastern time on Comment Date: 5 p.m. eastern time on ‘‘eFiling’’ link at http://www.ferc.gov. November 29, 2004. November 29, 2004. Persons unable to file electronically should submit an original and 14 copies 2. PJM Interconnection, L.L.C. 5. American Electric Power Service of the protest or intervention to the [Docket No. ER02–1326–010] Corporation Federal Energy Regulatory Commission, Take notice that on November 8, [Docket No. ER05–194–000] 888 First Street, NE., Washington, DC 2004, PJM Interconnection, L.L.C. (PJM) 20426. Take notice that on November 8, submitted for filing an amendment to its 2004, American Electric Power Service This filing is accessible on-line at report entitled ‘‘Compliance Report to http://www.ferc.gov, using the Corporation (AEPSC), on behalf of AEP the FERC Docket No. ER02–1326–000 Texas North Company (AEP TNC), ‘‘eLibrary’’ link and is available for Assessment of PJM Load Response review in the Commission’s Public submitted for filing a Generation Programs’’ prepared by the PJM Market Interconnection Agreement between Reference Room in Washington, DC. Monitoring Unit, originally filed on There is an ‘‘eSubscription’’ link on the AEP TNC and the Public Service November 1, 2004, and corrected on Company of Oklahoma (PSO) as Web site that enables subscribers to November 3, 2004. receive e-mail notification when a Operation Project Manager on Behalf of Comment Date: 5 p.m. eastern time on the Participants in Oklaunion Unit No. document is added to a subscribed November 29, 2004. docket(s). For assistance with any FERC 1. AEPSC requests an effective date of Online service, please e-mail 3. Midwest Independent Transmission November 15, 2004. [email protected], or call System Operator, Inc., Northern AEPSC states that copies of the filing (866) 208–3676 (toll free). For TTY, call Indiana Public Service Company were served on PSO and the Public (202) 502–8659. [Docket No. ER05–190–001] Utility Commission of Texas. Comment Date: 5 p.m. eastern time on Take notice that on November 8, Comment Date: 5 p.m. eastern time on November 22, 2004. 2004, the Midwest Independent November 29, 2004. Linda Mitry, Transmission System Operator, Inc. 6. Boston Edison Company Deputy Secretary. (Midwest ISO) and Northern Indiana [Docket No. ER05–196–000] [FR Doc. E4–3265 Filed 11–19–04; 8:45 am] Public Service Company (NIPSCO) (collectively, Applicants), filed an BILLING CODE 6717–01–P Take notice that on November 8, amendment to the Applicants’ 2004, Boston Edison Company (BECo) November 5, 2004, filing of proposed tendered for filing an Interconnection DEPARTMENT OF ENERGY revisions to the Midwest ISO Open Agreement and a Distribution Service Access Transmission Tariff. Applicants Agreement between BECo and the Federal Energy Regulatory request an effective date of December 1, Massachusetts Bay Transportation Commission 2004. Authority. BECo requests an effective The Midwest ISO states that it has [Docket No. ER01–1822–003, et al.] date of February 1, 2003. electronically served a copy of this filing, with attachments, upon all BECo states that copies of the filing Indigo Generation, LLC, et al.; Electric were served upon the Massachusetts Rate and Corporate Filings Midwest ISO Members, Member representatives of Transmission Owners Department of Telecommunications and November 15, 2004. and Non-Transmission Owners, the Energy. The following filings have been made Midwest ISO Advisory Committee Comment Date: 5 p.m. eastern time on with the Commission. The filings are participants, as well as all state November 29, 2004.

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7. Virginia Electric and Power interventions in lieu of paper using the mail to [email protected], or by mail Company ‘‘eFiling’’ link at http://www.ferc.gov. to: Environmental Protection Agency, [Docket No. ER05–197–000] Persons unable to file electronically EPA Docket Center (EPA/DC), should submit an original and 14 copies Enforcement and Compliance Docket Take notice that on November 8, of the protest or intervention to the and Information Center, Mail Code 2004, Virginia Electric and Power Federal Energy Regulatory Commission, 2201T, 1200 Pennsylvania Avenue, Company (Dominion Virginia Power) 888 First Street, NE., Washington, DC NW., Washington, DC 20460, and (2) tendered for filing an executed Standard 20426. OMB at: Office of Information and Large Generator Interconnection This filing is accessible on-line at Regulatory Affairs, Office of Agreement (LGIA) with CPV Warren, http://www.ferc.gov, using the Management and Budget (OMB), LLC (CPV) setting forth the terms and ‘‘eLibrary’’ link and is available for Attention: Desk Officer for EPA, 725 conditions governing the review in the Commission’s Public 17th Street, NW., Washington, DC interconnection between CPV’s Reference Room in Washington, DC. 20503. generating facility and Dominion There is an ‘‘eSubscription’’ link on the FOR FURTHER INFORMATION CONTACT: Dan Virginia Power’s transmission system. Web site that enables subscribers to Dominion Virginia Power requests an Chadwick, Compliance Assessment and receive e-mail notification when a Media Programs Division, Office of effective date of November 9, 2004. document is added to a subscribed Dominion Virginia Power states that Compliance, 2223A, Environmental docket(s). For assistance with any FERC copies of the filing were served upon Protection Agency, 1200 Pennsylvania Online service, please e-mail CPV and the Virginia State Corporation Avenue, NW., Washington, DC 20460; [email protected], or call Commission. telephone number: (202) 564–7054; fax Comment Date: 5 p.m. eastern time on (866) 208–3676 (toll free). For TTY, call number: (202) 564–0050; e-mail address: November 29, 2004. (202) 502–8659. [email protected]. Linda Mitry, SUPPLEMENTARY INFORMATION: EPA has 8. Commonwealth Chesapeake submitted the following ICR to OMB for Company, LLC Deputy Secretary. [FR Doc. E4–3266 Filed 11–19–04; 8:45 am] review and approval according to the [Docket No. ER05–198–000] procedures prescribed in 5 CFR 1320.12. BILLING CODE 6717–01–P Take notice that, on November 9, On May 25, 2004 (69 FR 29718), EPA 2004, Commonwealth Chesapeake sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no Company, L.L.C. (Commonwealth ENVIRONMENTAL PROTECTION comments. Chesapeake) submitted revisions to its AGENCY market-based FERC Electric Tariff, EPA has established a public docket Second Revised Volume No. 1 to [OECA–2004–0006; FRL–7840–3] for this ICR under Docket ID Number include the Market Behavior Rules OECA–2004–0006, which is available adopted by the Commission in Agency Information Collection for public viewing at the Enforcement Investigation of Terms and Conditions Activities: Submission for OMB Review and Compliance Docket and Information of Public Utility Market-Based Rate and Approval; Comment Request; Center in the EPA Docket Center (EPA/ Authorizations, 105 FERC ¶ 61,218 NESHAP for Beryllium Rocket Motor DC), EPA West, Room B102, 1301 (2003). Commonwealth Chesapeake Firing (Renewal), ICR Number 1125.04, Constitution Avenue, NW., Washington, states that the filing also revises OMB Number 2060–0394 DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to Commonwealth Chesapeake’s Tariff to AGENCY: Environmental Protection incorporate the pagination and other Agency (EPA). 4:30 p.m., Monday through Friday, requirements of the Commission’s order, excluding legal holidays. The telephone ACTION: Notice. Designation of Electric Rate Schedule number for the Reading Room is (202) Sheets, 90 FERC ¶ 61,352 (2000). SUMMARY: In compliance with the 566–1744, and the telephone number for Comment Date: 5 p.m. eastern time on Paperwork Reduction Act, this the Enforcement and Compliance November 29, 2004. document announces that an Docket and Information Center is: (202) 566–1752. An electronic version of the Standard Paragraph information Collection Request (ICR) has been forwarded to the Office of public docket is available through EPA Any person desiring to intervene or to Management and Budget (OMB) for Dockets (EDOCKET) at http:// protest this filing must file in review and approval. This is a request www.epa.gov/edocket. Use EDOCKET to accordance with Rules 211 and 214 of to renew an existing approved submit or view public comments, access the Commission’s Rules of Practice and collection. This ICR is scheduled to the index listing of the contents of the Procedure (18 CFR 385.211 and expire on November 30, 2004. Under public docket, and to access those 385.214). Protests will be considered by OMB regulations, the Agency may documents in the public docket that are the Commission in determining the continue to conduct or sponsor the available electronically. When in the appropriate action to be taken, but will collection of information while this system, select ‘‘search,’’ then key in the not serve to make protestants parties to submission is pending at OMB. This ICR docket ID number identified above. the proceeding. Any person wishing to describes the nature of the information Any comments related to this ICR become a party must file a notice of collection and its estimated burden and should be submitted to EPA and OMB intervention or motion to intervene, as cost. within 30 days of this notice. EPA’s appropriate. Such notices, motions, or policy is that public comments, whether DATES: protests must be filed on or before the Additional comments may be submitted electronically or in paper, comment date. Anyone filing a motion submitted on or before December 22, will be made available for public to intervene or protest must serve a copy 2004. viewing in EDOCKET as EPA receives of that document on the Applicant and ADDRESSES: Submit your comments, them and without change, unless the all parties to this proceeding. referencing docket ID number OECA– comment contains copyrighted material, The Commission encourages 2004–0006, to (1) EPA online using confidential business information (CBI), electronic submission of protests and EDOCKET (our preferred method), by e- or other information whose public

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disclosure is restricted by statute. When for a federal agency. This includes the describes the nature of the information EPA identifies a comment containing time needed to review instructions; collection and its estimated burden and copyrighted material, EPA will provide develop, acquire, install, and utilize cost. a reference to that material in the technology and systems for the purposes DATES: Additional comments may be version of the comment that is placed in of collecting, validating, and verifying submitted on or before December 22, EDOCKET. The entire printed comment, information, processing and 2004. including the copyrighted material, will maintaining information, and disclosing ADDRESSES: Submit your comments, be available in the public docket. and providing information; adjust the referencing docket ID number SFUND– Although identified as an item in the existing ways to comply with any 2004–0008, to (1) EPA online using official docket, information claimed as previous applicable instructions and EDOCKET (our preferred method), by e- CBI, or whose disclosure is otherwise requirements; train personnel to be able mail to [email protected], or restricted by statute, is not included in to respond to a collection of by mail to: EPA Docket Center, the official public docket, and will not information; search data sources; Environmental Protection Agency, be available for public viewing in complete and review the collection of Office of Solid Waste and Emergency EDOCKET. For further information information; and transmit or otherwise Response (OSWER), Superfund Docket, about the electronic docket, see EPA’s disclose the information. Mail Code 5305T, 1200 Pennsylvania Federal Register notice describing the Respondents/Affected Entities: These Ave., NW., Washington, DC 20460. electronic docket at 67 FR 38102 (May standards apply to sources that are 31, 2002), or go to http://www.epa.gov/ FOR FURTHER INFORMATION CONTACT: rocket motor test sites that use Kirby Biggs, Office of Emergency and edocket. beryllium propellant. Title: NESHAP for Beryllium Rocket Remedial Response, Mail Code 5204G, Estimated Number of Respondents: 1. Environmental Protection Agency, 1200 Motor Firing (40 CFR part 61, subpart D) Frequency of Response: On occasion. (Renewal). Pennsylvania Ave., NW., Washington, Estimated Total Annual Burden: 8 DC 20460; telephone number: 703–308– Abstract: The National Emission hours. Standards for Hazardous Air Pollutants 8506; fax number: 703–308–2358; e-mail Estimated Total Annual Costs: $0, address: [email protected]. (NESHAP, 40 CFR part 61, subpart D) which includes $0 annualized capital/ SUPPLEMENTARY INFORMATION: EPA has was promulgated on April 6, 1973, and startup costs, $0 annual O&M costs, and submitted the following ICR to OMB for amended on November 7, 1985, for this $0 annual labor costs. review and approval according to the source category. These standards Changes in the Estimates: Industry procedures prescribed in 5 CFR 1320.12. establish limits for beryllium. The rule burden hours remain unchanged. requires subject test sites to test ambient On July 2, 2004, (69 FR 40369), EPA air for beryllium during and after firing Dated: November 13, 2004. sought comments on this ICR pursuant a rocket motor. Samples are analyzed Oscar Morales, to 5 CFR 1320.8(d). EPA received one within 30 days and results are reported Director, Collection Strategies Division. comment. to EPA by registered letter by the [FR Doc. 04–25816 Filed 11–19–04; 8:45 am] EPA has established a public docket business day following the BILLING CODE 6560–50–P for this ICR under Docket ID number determination and calculation. The rule SFUND–2004–0008, which is available also requires continuous stack sampling for public viewing at the Superfund of beryllium combustion products ENVIRONMENTAL PROTECTION Docket in the EPA Docket Center (EPA/ during and after firing a rocket motor, AGENCY DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, and analysis and reporting within 30 [SFUND–2004–0008, FRL–7840–2] days. In addition, other reporting DC. The EPA Docket Center Public requirements include notification of Agency Information Collection Reading Room is open from 8:30 a.m. to anticipated firing date; air quality Activities; Submission to OMB for 4:30 p.m., Monday through Friday, emissions and ambient air quality and Review and Approval; Comment excluding legal holidays. The telephone emission test reports. Recordkeeping Request; Cooperative Agreements and number for the Reading Room is (202) requirements include air sampling test Superfund State Contracts for 566–1744, and the telephone number for results, record of emission test results Superfund Response Actions the Superfund Docket is (202) 566– and making these records available to (Renewal), EPA ICR Number 1487.08, 0276. An electronic version of the the Agency. Records are kept for a OMB Control Number 2050–0179 public docket is available through EPA period of two years for the air sampling Dockets (EDOCKET) at http:// test results. AGENCY: Environmental Protection www.epa.gov/edocket. Use EDOCKET to An agency may not conduct or Agency (EPA). obtain a copy of the draft collection of sponsor, and a person is not required to ACTION: Notice. information, submit or view public respond to, a collection of information comments, access the index listing of unless it displays a currently valid OMB SUMMARY: In compliance with the the contents of the public docket, and to Control Number. The OMB Control Paperwork Reduction Act (44 U.S.C. access those documents in the public Numbers for EPA’s regulations are listed 3501 et seq.), this document announces docket that are available electronically. in 40 CFR part 9 and 48 CFR Chapter that an Information Collection Request Once in the system, select ‘‘search,’’ 15, and are identified on the form and/ (ICR) has been forwarded to the Office then key in the docket ID number or instrument, if applicable. of Management and Budget (OMB) for identified above. Burden Statement: The annual public review and approval. This is a request Any comments related to this ICR reporting and recordkeeping burden for to renew an existing approved should be submitted to EPA and OMB this collection of information is collection. This ICR is scheduled to within 30 days of this notice. EPA’s estimated to average 8 hours per expire on November 30, 2004. Under policy is that public comments, whether response. Burden means the total time, OMB regulations, the Agency may submitted electronically or in paper, effort, or financial resources expended continue to conduct or sponsor the will be made available for public by persons to generate, maintain, retain, collection of information while this viewing in EDOCKET as EPA receives or disclose or provide information to or submission is pending at OMB. This ICR them and without change, unless the

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comment contains copyrighted material, Burden Statement: The estimated SUMMARY: In compliance with the CBI, or other information whose public annual public reporting and Paperwork Reduction Act, this disclosure is restricted by statute. When recordkeeping burden for this collection document announces that an EPA identifies a comment containing is estimated to average 10.5 hours per Information Collection Request (ICR) copyrighted material, EPA will provide response. Burden means the total time, has been forwarded to the Office of a reference to that material in the effort, or financial resources expended Management and Budget (OMB) for version of the comment that is placed in by persons to generate, maintain, retain, review and approval. This is a request EDOCKET. The entire printed comment, or disclose or provide information to or to renew an existing approved including the copyrighted material, will for a Federal agency. This includes the collection. This ICR is scheduled to be available in the public docket. time needed to review instructions; expire on November 30, 2004. Under Although identified as an item in the develop, acquire, install, and utilize OMB regulations, the Agency may official docket, information claimed as technology and systems for the purposes continue to conduct or sponsor the CBI, or whose disclosure is otherwise of collecting, validating, and verifying collection of information while this restricted by statute, is not included in information, processing and submission is pending at OMB. This ICR the official public docket, and will not maintaining information, and disclosing describes the nature of the information be available for public viewing in and providing information; adjust the collection and its estimated burden and EDOCKET. For further information existing ways to comply with any cost. about the electronic docket, see EPA’s previously applicable instructions and DATES: Additional comments may be Federal Register notice describing the requirements; train personnel to be able submitted on or before December 22, electronic docket at 67 FR 38102 (May to respond to a collection of 2004. 31, 2002), or go to http://www.epa.gov/ information; search data sources; ADDRESSES: Submit your comments, edocket. complete and review the collection of information; and transmit or otherwise referencing docket ID number OECA– Title: Cooperative Agreements and 2004–0019, to (1) EPA online using Superfund State Contracts for disclose the information. Respondents/Affected Entities: EDOCKET (our preferred method), by e- Superfund Response Actions (Renewal). mail to [email protected], or by mail Abstract: This ICR authorizes the Entities potentially affected by this action are States, Federally-recognized to: Environmental Protection Agency, collection of information under 40 CFR EPA Docket Center (EPA/DC), part 35, subpart O, which establishes Indian tribes and Tribal Consortia, and political subdivisions which apply to Enforcement and Compliance Docket the administrative requirements for and Information Center, Mail Code cooperative agreements funded under EPA for financial assistance under a Superfund cooperative agreement or a 2201T, 1200 Pennsylvania Avenue, the Comprehensive Environmental NW., Washington, DC 20460, and (2) Response, Compensation, and Liability Superfund State Contract. Estimated Number of Respondents: OMB at: Office of Information and Act (CERCLA) for State, Federally- Regulatory Affairs, Office of recognized Indian tribal governments, 581. Frequency of Response: Annually, Management and Budget (OMB), and political subdivision response On-occasion. Attention: Desk Officer for EPA, 725 actions. This regulation also codifies the Estimated Total Annual Hour Burden: 17th Street, NW., Washington, DC administrative requirements for 6,063 hours. 20503. Superfund State Contracts for non-State Estimated Total Annual Cost: FOR FURTHER INFORMATION CONTACT: lead remedial responses. This regulation $215,000, includes $0 annualized Leonard Lazarus, Compliance includes only those provisions capital/startup and O&M costs. mandated by CERCLA, required by Changes in the Estimates: There is an Assessment and Media Programs OMB Circulars, or added by EPA to increase of 948 hours from the most Division, Office of Compliance, Mail ensure sound and effective financial recently approved ICR. This increase is Code: 2223A, Environmental Protection assistance management under this due to the correction of calculation Agency, 1200 Pennsylvania Avenue, regulation. The information is collected errors in the prior ICR and revised NW., Washington, DC 20460; telephone from applicants and/or recipients of Regional input. number: (202) 564–6369; fax number: EPA assistance and is used to make (202) 564–0050; e-mail address: awards, pay recipients, and collect Dated: November 13, 2004. [email protected]. Oscar Morales, information on how Federal funds are SUPPLEMENTARY INFORMATION: EPA has being utilized. EPA requires this Director, Collection Strategies Division. submitted the following ICR to OMB for information to meet its Federal [FR Doc. 04–25817 Filed 11–19–04; 8:45 am] review and approval according to the stewardship responsibilities. Recipient BILLING CODE 6560–50–P procedures prescribed in 5 CFR 1320.12. responses are required to obtain a On May 25, 2004 (69 FR 29718), EPA benefit (Federal funds) under 40 CFR sought comments on this ICR pursuant ENVIRONMENTAL PROTECTION part 31, ‘‘Uniform Administrative to 5 CFR 1320.8(d). EPA received no AGENCY Requirements for Grants and comments. Cooperative Agreements to State and [OECA–2004–0019; FRL–7840–1 ] EPA has established a public docket Local Governments’’ and under 40 CFR for this ICR under Docket ID No. OECA– part 35, ‘‘State and Local Assistance.’’ Agency Information Collection 2004–0019, which is available for public An agency may not conduct or Activities; Submission for OMB Review viewing at the Enforcement and sponsor, and a person is not required to and Approval; Comment Request; Compliance Docket and Information respond to, a collection of information NESHAP for Pulp and Paper Center in the EPA Docket Center (EPA/ unless it displays a currently valid OMB Production (Renewal), ICR Number DC), EPA West, Room B102, 1301 Control Number. The OMB control 1657.05, OMB Number 2060–0387 Constitution Avenue, NW., Washington, numbers for EPA’s regulations in 40 AGENCY: Environmental Protection DC. The EPA Docket Center Public CFR are listed in 40 CFR part 9 and are Agency (EPA). Reading Room is open from 8:30 a.m. to identified on the form and/or 4:30 p.m., Monday through Friday, ACTION: Notice. instrument, if applicable. excluding legal holidays. The telephone

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number for the Reading Room is (202) monitoring and recordkeeping to respond to a collection of 566–1744, and the telephone number for requirements are designed to cover information; search data sources; the Enforcement and Compliance parameters that are already being complete and review the collection of Docket and Information Center Docket monitored as part of the manufacturing information; and transmit or otherwise is: (202) 566–1752. An electronic process. disclose the information. version of the public docket is available Pulp mill owners or operators Respondents/Affected Entities: Pulp through EPA Dockets (EDOCKET) at (respondents) are required to submit mill owners or operators. http://www.epa.gov/edocket. Use initial notifications, maintain records of Estimated Number of Respondents: EDOCKET to submit or view public the occurrence and duration of any 137. comments, access the index listing of startup, shutdown, or malfunction in Frequency of Response: Initial, the contents of the public docket, and to the operation of an affected facility, or Quarterly, Semiannually. access those documents in the public any period during which the monitoring Estimated Total Annual Hour Burden: docket that are available electronically. system is inoperative. Respondents are 42,444 hours. When in the system, select ‘‘search,’’ required to monitor and keep records of Estimated Total Annual Costs: then key in the docket ID number specific operating parameters for each $3,085,125, which includes $0 identified above. control device and to perform and annualized capital/startup costs, Any comments related to this ICR document periodic inspections of the $377,000 annual O&M costs, and should be submitted to EPA and OMB closed vent and wastewater conveyance $2,708,125 annual labor costs. within 30 days of this notice. EPA’s systems. All respondents must submit Changes in the Estimates: There is a policy is that public comments, whether semiannual summary reports of decrease of 7,788 hours in the total submitted electronically or in paper, monitored parameters, and they must estimated burden currently identified in will be made available for public submit an additional monitoring report the OMB Inventory of Approved ICR viewing in EDOCKET as EPA receives during each quarter in which monitored Burdens. This decrease is due to a them and without change, unless the parameters were outside the ranges reduction in annual burden due to an comment contains copyrighted material, established in the standard or during improved estimate of the number of Confidential Business Information (CBI), initial performance tests. A source facilities. or other information whose public identified to be out of compliance with Dated: November 13, 2004. disclosure is restricted by statute. When the NESHAP will be required to submit EPA identifies a comment containing quarterly reports until the Administrator Oscar Morales, copyrighted material, EPA will provide is satisfied that the source has corrected Director, Collection Strategies Division. a reference to that material in the its compliance problem. These [FR Doc. 04–25818 Filed 11–19–04; 8:45 am] version of the comment that is placed in notifications, reports, and records are BILLING CODE 6560–50–P EDOCKET. The entire printed comment, essential in determining compliance, including the copyrighted material, will and are required of all sources subject be available in the public docket. to Maximum Achievable Control ENVIRONMENTAL PROTECTION Although identified as an item in the Technology (MACT) standards. Since AGENCY official docket, information claimed as none of the required reports to the [OECA–2004–0011; FRL–7839–9] CBI, or whose disclosure is otherwise Agency have been deemed confidential restricted by statute, is not included in business information, they will not be Agency Information Collection the official public docket, and will not treated as such. Responses are Activities; Submission for OMB Review be available for public viewing in mandatory (40 CFR part 63, subpart S). and Approval; Comment Request; EDOCKET. For further information An agency may not conduct or NESHAP for Vinyl Chloride (Renewal), about the electronic docket, see EPA’s sponsor, and a person is not required to EPA ICR Number 0186.10, OMB Federal Register notice describing the respond to, a collection of information Control Number 2060–0071 electronic docket at 67 FR 38102 (May unless it displays a currently valid OMB 31, 2002), or go to http://www.epa.gov/ Control Number. The OMB Control AGENCY: Environmental Protection edocket. Numbers for EPA’s regulations are listed Agency (EPA). Title: NESHAP for Pulp and Paper in 40 CFR part 9 and 48 CFR chapter 15, ACTION: Notice. Production (40 CFR part 63, subpart S) and are identified on the form and/or (Renewal). instrument, if applicable. SUMMARY: In compliance with the Abstract: This National Emission Burden Statement: The annual public Paperwork Reduction Act, this Standards for Hazardous Air Pollutants reporting and recordkeeping burden for document announces that an (NESHAP) covering emissions from the this collection of information is Information Collection Request (ICR) pulping process relies on the capture estimated to average 104 hours per has been forwarded to the Office of and destruction of hazardous air response. Burden means the total time, Management and Budget (OMB) for pollutants (HAP) by either burning them effort, or financial resources expended review and approval. This is a request in a boiler or kiln or by introducing by persons to generate, maintain, retain, to renew an existing approved them into the wastewater treatment or disclose or provide information to or collection. This ICR is scheduled to system. HAP’s captured from bleaching for a Federal agency. This includes the expire on November 30, 2004. Under systems are controlled with a chlorine time needed to review instructions; OMB regulations, the Agency may gas scrubber. The recordkeeping, develop, acquire, install, and utilize continue to conduct or sponsor the notification and reporting requirements technology and systems for the purposes collection of information while this of the standard are critically important of collecting, validating, and verifying submission is pending at OMB. This ICR as they allow the Agency to determine information, processing and describes the nature of the information to which facilities the standards apply maintaining information, and disclosing collection and its estimated burden and and they enable the Agency to monitor and providing information; adjust the cost. initial and ongoing compliance with the existing ways to comply with any DATES: Additional comments may be standards. As much as possible, in order previously applicable instructions and submitted on or before December 22, to reduce the burden, the compliance requirements; train personnel to be able 2004.

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ADDRESSES: Submit your comments, viewing in EDOCKET as EPA receives provides a means for ensuring referencing docket ID number OECA– them and without change, unless the compliance. 2004–0011, to (1) EPA online using comment contains copyrighted material, The standards require daily EDOCKET (our preferred method), by e- Confidential Business Information (CBI), measurements from the continuous mail to [email protected], or by mail or other information whose public monitoring system and of the reactor to: EPA Docket Center, Environmental disclosure is restricted by statute. When pressure and temperature. Protection Agency, Enforcement and EPA identifies a comment containing Establishment of a continuous Compliance Docket and Information copyrighted material, EPA will provide monitoring program is a high priority of Center, Mail Code 2201T, 1200 a reference to that material in the the Agency. The continuous monitoring Pennsylvania Ave., NW., Washington, version of the comment that is placed in system monitors VC emissions from the DC 20460, and (2) OMB at: Office of EDOCKET. The entire printed comment, stack to judge compliance with the Information and Regulatory Affairs, including the copyrighted material, will numerical limits in the standards. The Office of Management and Budget be available in the public docket. parameters are used to judge the (OMB), Attention: Desk Officer for EPA, Although identified as an item in the operation of the reactor so that the 725 17th Street, NW., Washington, DC official docket, information claimed as source and EPA will be aware of 20503. CBI, or whose disclosure is otherwise improper operation and maintenance. FOR FURTHER INFORMATION CONTACT: restricted by statute, is not included in The standards implicitly require the Learia Williams, Compliance the official public docket, and will not initial reports required by the General Assessment and Media Programs be available for public viewing in Provisions of 40 CFR 61.7 and 61.9. Division, Office of Compliance, (Mail EDOCKET. For further information These initial reports include application Code 2223A), Environmental Protection about the electronic docket, see EPA’s for approval of construction or Agency, 1200 Pennsylvania Ave., NW., Federal Register notice describing the modification, and notification of Washington, DC 20460; telephone electronic docket at 67 FR 38102 (May startup. The standards also require number: (202) 564–4113; fax number: 31, 2002), or go to http://www.epa.gov/ quarterly reporting of vinyl chloride (202) 564–0050; e-mail address: edocket. emissions from stripping, reactor [email protected]. Title: NESHAP for Vinyl Chloride openings, and exhausts. Reports must be (Renewal). submitted within 10 days of each valve SUPPLEMENTARY INFORMATION: EPA has discharge and manual vent valve Abstract: The National Emissions submitted the following ICR to OMB for discharge. The owner/operator must Standards for Hazardous Air Pollutants review and approval according to the make the following one-time-only (NESHAP) for Vinyl Chloride (VC) were procedures prescribed in 5 CFR 1320.12. reports: Application for approval of proposed on December 24, 1975, On May 25, 2004 (69 FR 29718), EPA construction or modification; promulgated on October 21, 1976, and sought comments on this ICR pursuant notification of startup; application of a amended on June 7, 1977, September to 5 CFR 1320.8(d). EPA received no waiver of testing (if desired by source); comments. 30, 1986, September 23, 1988, and and an initial report. The initial report EPA has established a public docket December 23, 1992. These standards includes a list of the equipment for this ICR under Docket ID No. OECA– apply to exhaust gases and installed for compliance, a description 2004–0011, which is available for public oxychlorination vents at ethylene of the physical and functional viewing at the Enforcement and dichloride (EDC) plants; exhaust gas at characteristics of each piece of Compliance Docket and Information vinyl chloride monomer (VCM) plants; equipment, a description of the methods Center in the EPA Docket Center (EPA/ and exhaust gases, reactor opening which have been incorporated into the DC), EPA West, Room B102, 1301 losses, manual vent valves, and standard operation procedures for Constitution Ave., NW., Washington, stripping residuals at polyvinyl chloride measuring or calculating emissions, and DC. The EPA Docket Center Public (PVC) plants. The standards also apply a statement that equipment and Reading Room is open from 8:30 a.m. to to relief valves and fugitive emission procedures are in place and are being 4:30 p.m., Monday through Friday, sources at all three types of plants. used. Generally, the one-time-only excluding legal holidays. The telephone In the Administrator’s judgement, reports are required of all sources number for the Reading Room is (202) vinyl chloride emissions from polyvinyl subject to NESHAP regulation. 566–1744, and the telephone number for chloride (PVC), ethylene dichloride An agency may not conduct or the Enforcement and Compliance (EDC), and vinyl chloride monomer sponsor, and a person is not required to Docket and Information Center Docket (VCM) plants cause or contribute to air respond to, a collection of information is: (202) 566–1752. An electronic pollution that may reasonably be unless it displays a currently valid OMB version of the public docket is available anticipated to result in an increase in Control Number. The OMB Control through EPA Dockets (EDOCKET) at mortality or an increase in serious Numbers for EPA’s regulations are listed http://www.epa.gov/edocket. Use irreversible, or incapacitating reversible in 40 CFR part 9 and 48 CFR chapter 15, EDOCKET to submit or view public illness. Vinyl chloride is a known and are identified on the form and/or comments, access the index listing of human carcinogen which causes a rare instrument, if applicable. the contents of the public docket, and to cancer of the liver. In order to ensure Burden Statement: The annual public access those documents in the public compliance with the standard, adequate reporting and recordkeeping burden for docket that are available electronically. recordkeeping and reporting is this collection of information is When in the system, select ‘‘search,’’ necessary. This information enables the estimated to average 60 hours per then key in the docket ID number Agency to: (1) Ensure that facilities that response. Burden means the total time, identified above. are affected continue to operate the effort, or financial resources expended Any comments related to this ICR control equipment and use proper work by persons to generate, maintain, retain, should be submitted to EPA and OMB practices to achieve compliance; (2) or disclose or provide information to or within 30 days of this notice. EPA’s notification of startup indicates to for a Federal agency. This includes the policy is that public comments, whether enforcement personnel when a new time needed to review instructions; submitted electronically or in paper, facility has been constructed and is thus develop, acquire, install, and utilize will be made available for public subject to the standards; and (3) technology and systems for the purposes

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of collecting, validating, and verifying Collection Request (ICR) has been Prevention and Toxics Docket is (202) information, processing and forwarded to the Office of Management 566–0280. An electronic version of the maintaining information, and disclosing and Budget (OMB) for review and public docket is available through EPA and providing information; adjust the approval. This is a request to renew an Dockets (EDOCKET) at http:// existing ways to comply with any existing approved collection. This ICR is www.epa.gov/edocket. Use EDOCKET to previously applicable instructions and scheduled to expire on November 30, submit or view public comments, access requirements; train personnel to be able 2004. Under OMB regulations, the the index listing of the contents of the to respond to a collection of Agency may continue to conduct or public docket, and to access those information; search data sources; sponsor the collection of information documents in the public docket that are complete and review the collection of while this submission is pending at available electronically. Once in the information; and transmit or otherwise OMB. This ICR describes the nature of system, select ‘‘search,’’ then key in the disclose the information. the information collection and its docket ID number identified above. Respondents/Affected Entities: estimated cost. Any comments related to this ICR Manufacturers of ethylene dichloride, DATES: Additional comments may be should be submitted to EPA and OMB vinyl chloride monomer, and polyvinyl submitted on or before December 22, within 30 days of this notice. chloride. 2004. EPA’s policy is that public comments, Estimated Number of Respondents: ADDRESSES: whether submitted electronically or in 28. Submit your comments, referencing docket ID Number OPPT– paper, will be made available for public Frequency of Response: Initially, viewing in EDOCKET as EPA receives quarterly, and on occasion. 2004–0087, to (1) EPA online using EDOCKET (our preferred method), by e- them and without change, unless the Estimated Total Annual Hour Burden: comment contains copyrighted material, 11,825 hours. mail to [email protected] or by mail to: Document Control Office (DCO), Office CBI, or other information whose public Estimated Total Capital and disclosure is restricted by statute. When Operations & Maintenance (O&M) of Pollution Prevention and Toxics (OPPT), Environmental Protection EPA identifies a comment containing Annual Costs: $2,014,515, which copyrighted material, EPA will provide includes $0 annualized capital/startup, Agency, Mailcode: 7407T, 1200 Pennsylvania Ave., NW., Washington, a reference to that material in the $1,260,000 annual O&M costs, and version of the comment that is placed in $754,515 Respondent Labor Costs. DC 20460, and (2) OMB at: Office of Information and Regulatory Affairs, EDOCKET. The entire printed comment, Changes in the Estimates: There is a including the copyrighted material, will decrease of 4,334 hours in the total Office of Management and Budget (OMB), Attention: Desk Officer for EPA, be available in the public docket. estimated hours burden currently Although identified as an item in the identified in the OMB Inventory of 725 17th Street, NW., Washington, DC 20503. official docket, information claimed as Approved ICR Burdens. This decrease CBI, or whose disclosure is otherwise in the burden from the most recently FOR FURTHER INFORMATION CONTACT: restricted by statute, is not included in approved ICR is due to a decrease in the Barbara Cunningham, Acting Director, the official public docket, and will not number of existing sources. Our data Environmental Assistance Division, be available for public viewing in indicates that there are approximately Office of Pollution Prevention and EDOCKET. For further information forty-four sources in the active ICR Toxics, Environmental Protection about the electronic docket, see EPA’s compared to twenty-eight sources in the Agency, Mailcode: 7408, 1200 Federal Register notice describing the renewal, reflected in the change in the Pennsylvania Ave., NW., Washington, electronic docket at 67 FR 38102 (May hourly burden. DC 20460; telephone number: (202) 31, 2002), or go to http://www.epa.gov/ Dated: November 13, 2004. 554–1404; e-mail address: TSCA– edocket. [email protected]. Oscar Morales, Title: PCBs; Consolidated Reporting Director, Collection Strategies Division. SUPPLEMENTARY INFORMATION: and Recordkeeping Requirements. [FR Doc. 04–25819 Filed 11–19–04; 8:45 am] EPA has submitted the following ICR Abstract: Section 6(e)(1) of the Toxic Substances Control Act (TSCA), 15 BILLING CODE 6560–50–P to OMB for review and approval according to the procedures prescribed U.S.C. 2605(e), directs EPA to regulate in 5 CFR 1320.12. On April 30, 2004, the marking and disposal of PCBs. ENVIRONMENTAL PROTECTION EPA sought comments on this renewal Section 6(e)(2) bans the manufacturing, AGENCY ICR (69 FR 23747). EPA sought processing, distribution in commerce, comments on this ICR pursuant to 5 and use of PCBs in other than a totally [OPPT–2004–0087; FRL–7839–8] CFR 1320.8(d). EPA received one enclosed manner. Section 6(e)(3) establishes a process for obtaining Agency Information Collection comment during the comment period, exemptions from the prohibitions on the Activities; Submission to OMB for which is addressed in the Supporting manufacture, processing, and Review and Approval; Comment Statement. EPA has established a public docket distribution in commerce of PCBs. Since Request; PCBs; Consolidated for this ICR under Docket ID No. OPPT– 1978, EPA has promulgated numerous Reporting and Recordkeeping 2004–0087, which is available for public rules addressing all aspects of the life Requirements; EPA ICR No. 1446.08, viewing at the OPPT Docket in the EPA cycle of PCBs as required by the statute. OMB No. 2070–0112 Docket Center (EPA/DC), EPA West, The regulations are intended to prevent AGENCY: Environmental Protection Room B102, 1301 Constitution Ave., the improper handling and disposal of Agency (EPA). NW., Washington, DC. The EPA Docket PCBs and to minimize the exposure of ACTION: Notice. Center Public Reading Room is open human beings or the environment to from 8 a.m. to 4:30 p.m., Monday PCBs. These regulations have been SUMMARY: In compliance with the through Friday, excluding legal codified in the various subparts of 40 Paperwork Reduction Act (44 U.S.C. holidays. The telephone number for the CFR part 761. There are approximately 3501 et seq.), this document announces Reading Room is (202) 566–1744, and 100 specific reporting, third-party that the following Information the telephone number for the Pollution reporting, and recordkeeping

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requirements covered by 40 CFR part information; and transmit or otherwise Summary Report for an Emergency 761. disclose the information. Exemption for Pesticides; EPA ICR No. To meet its statutory obligations to Respondents/Affected Entities: 0596.08; OMB Control No. 2070–0032. regulate PCBs, EPA must obtain Persons who currently possess PCB The ICR, which is abstracted below, sufficient information to conclude that Items, PCB-contaminated equipment, or describes the nature of the information specified activities do not result in an other PCB waste. collection activity and its expected unreasonable risk of injury to health or Frequency of Collection: On occasion. burden and costs. the environment. EPA uses the Estimated No. of Respondents: DATES: Additional comments may be information collected under the 40 CFR 814,120. submitted on or before December 22, part 761 requirements to ensure that Estimated Total Annual Burden on 2004. PCBs are managed in an Respondents: 824,778 hours. environmentally safe manner and that Estimated Total Annual Costs: FOR FURTHER INFORMATION CONTACT: activities are being conducted in $23,005,750. Cameo Smoot, Field and External compliance with the PCB regulations. Changes in Burden Estimates: This Affairs Division (7506C), Office of The information collected by these request reflects an increase of 83,517 Pesticide Programs, Environmental requirements will update the Agency’s hours (from 741,261 hours to 824,778 Protection Agency, 1200 Pennsylvania knowledge of ongoing PCB activities, hours) in the total estimated respondent Ave., NW., Washington, DC 20460; ensure that individuals using or burden from that currently in the OMB telephone number: (703) 305–5454; fax disposing of PCBs are held accountable inventory. This increase is due to number: (703) 305–5884; e-mail address: for their activities, and demonstrate revisions to the total number of [email protected]. compliance with the PCB regulations. respondents. In some cases, the total ADDRESSES: Submit your comments, Specific uses of the information number of respondents was based on referencing docket ID number OPP– collected include determining the number of facilities, in other cases, the 2004–0252 , to (1) EPA online using efficacy of a disposal technology; total number of respondents was EDOCKET (our preferred method), by e- evaluating exemption requests and calculated by estimating the total mail to [email protected], or by mail exclusion notices; targeting compliance number of pieces of equipment that to: Public Information and Records inspections; and ensuring adequate respondents must monitor for a Integrity Branch (PIRIB), Office of storage capacity for PCB waste. particular requirement. These burden Pesticide Programs (OPP), Responses to the collection of changes were the result of new data Environmental Protection Agency, information are mandatory (see 40 CFR gathered for this ICR renewal as well as Mailcode: 7502C, 1200 Pennsylvania part 761). Respondents may claim all or a recent PCB regulatory analysis, Ave., NW., Washington, DC, 20460, and part of a notice as CBI. EPA will estimate adjustments made for (2) OMB at: Office of Information and disclose information that is covered by consistency with a recent Agency Regulatory Affairs, Office of a CBI claim only to the extent permitted report, and updated Agency data Management and Budget (OMB), by, and in accordance with, the regarding total numbers of regulated Attention: Desk Officer for EPA, 725 procedures in 40 CFR part 2. entities. The change in burden 17th Street, NW., Washington, DC An agency may not conduct or represents an adjustment. 20503. sponsor, and a person is not required to respond to, a collection of information Dated: November 9, 2004. SUPPLEMENTARY INFORMATION: EPA has unless it displays a currently valid OMB Oscar Morales, submitted the following ICR to OMB for control number. The OMB control Director, Collection Strategies Division. review and approval according to the numbers for EPA’s regulations in title 40 [FR Doc. 04–25820 Filed 11–19–04; 8:45 am] procedures prescribed in 5 CFR 1320.12. The Federal Register document, of the CFR, after appearing in the BILLING CODE 6560–50–P Federal Register, are listed in 40 CFR required under 5 CFR 1320.8(d), part 9 and included on the related soliciting comments on this collection collection instrument or form, if ENVIRONMENTAL PROTECTION of information was published on August applicable. AGENCY 27, 2004 (69 FR 52664). EPA received Burden Statement: The annual public one comment in response to that notice reporting and recordkeeping burden for [OPP–2004–0252, FRL–7839–6] during the 60-day comment period and has addressed it in the ICR. this collection of information is Agency Information Collection EPA has established a public docket estimated to average about 1 hour per Activities; Submission to OMB; for this ICR under Docket ID No. OPP– response. Burden means the total time, Comment Request; EPA ICR No. effort or financial resources expended 2004–0252, which is available for public 0596.08; OMB Control No. 2070–0032; by persons to generate, maintain, retain viewing at the Public Information and Application and Summary Report for or disclose or provide information to or Records Integrity Branch (PIRIB), Rm. an Emergency Exemption for for a Federal agency. This includes the 119, Crystal Mall #2, 1801 Bell St., Pesticides time needed to review instructions; Arlington, VA. This docket facility is develop, acquire, install and utilize AGENCY: Environmental Protection open from 8:30 a.m. to 4 p.m., Monday technology and systems for the purposes Agency (EPA). through Friday, excluding legal of collecting, validating and verifying ACTION: Notice. holidays. The docket telephone number information, processing and is (703) 305–5805. An electronic version maintaining information, and disclosing SUMMARY: In compliance with the of the public docket is available through and providing information; adjust the Paperwork Reduction Act (PRA) (44 EPA Dockets (EDOCKET) at http:// existing ways to comply with any U.S.C. 3501 et seq.), this document www.epa.gov/edocket. Use EDOCKET to previously applicable instructions and announces that the following submit or view public comments, access requirements; train personnel to be able Information Collection Request (ICR) the index listing of the contents of the to respond to a collection of has been forwarded to the Office of public docket, and to access those information; search data sources; Management and Budget (OMB) for documents in the public docket that are complete and review the collection of review and approval: Application and available electronically. Once in the

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system, select ‘‘search,’’ then key in the agencies submit applications for section Dated: November 9, 2004. docket ID number identified above. 18 emergency exemptions at their Oscar Morales, Any comments related to this ICR discretion in accordance with 40 CFR Director, Collection Strategies Division. should be submitted to EPA and OMB part 166. After EPA has granted a [FR Doc. 04–25821 Filed 11–19–04; 8:45 am] within 30 days of this notice. Please section 18 emergency exemption to a BILLING CODE 6560–50–P note, EPA’s policy is that public given government agency, the comments, whether submitted requesting agency must submit to EPA electronically or on paper, will be made information related to any unexpected ENVIRONMENTAL PROTECTION available for public viewing in adverse effects resulting from the use of AGENCY EDOCKET as EPA receives them and the pesticide and a report summarizing without change, unless the comment the results of the pesticide use. These [OECA–2004–0021; FRL–7839–7] contains copyrighted material, CBI, or government agencies must also maintain other information whose public records for all treatments involving the Agency Information Collection disclosure is restricted by statute. When first food use of a pesticide and make Activities; Submission for OMB Review EPA identifies a comment containing them available to EPA upon request. and Approval; Comment Request; copyrighted material, EPA will provide NSPS for Portland Cement Plants Burden Statement: The annual a reference to that material in the (Renewal), ICR Number 1051.09, OMB ‘‘respondent’’ burden for this ICR is version of the comment that is placed in Number 2060–0025 estimated to be 99 hours per response. EDOCKET. The entire printed comment, According to the Paperwork Reduction AGENCY: Environmental Protection including the copyrighted material, will Act, ‘‘burden’’ means the total time, Agency (EPA). be available in the public docket. effort, or financial resources expended Although identified as an item in the ACTION: Notice. by persons to generate, maintain, retain, official docket, information claimed as or disclose or provide information to or SUMMARY: In compliance with the CBI, or whose disclosure is otherwise Paperwork Reduction Act, this restricted by statute, is not included in for a Federal agency. For this collection, document announces that an the official public docket, and will not it is the time reading the regulations, Information Collection Request (ICR) be available for public viewing in planning the necessary data collection has been forwarded to the Office of EDOCKET. For further information activities, conducting tests, analyzing Management and Budget (OMB) for about the electronic docket, see EPA’s data, generating reports and completing Federal Register notice describing the other required paperwork, and storing, review and approval. This is a request electronic docket at 67 FR 38102 (May filing, and maintaining the data. The to renew an existing approved 31, 2002), or go to http://www.epa.gov/ agency may not conduct or sponsor, and collection. This ICR is scheduled to edocket. a person is not required to respond to, expire on November 30, 2004. Under ICR Title: Application and Summary a collection of information unless it OMB regulations, the Agency may Report for an Emergency Exemption for displays a currently valid OMB control continue to conduct or sponsor the Pesticides. number. The OMB control number for collection of information while this ICR Status: This is a request for this information collection appear at the submission is pending at OMB. This ICR extension of an existing approved beginning and the end of this document. describes the nature of the information collection that is currently scheduled to In addition OMB control numbers for collection and its estimated burden and expire on November 30, 2004. EPA is EPA’s regulations, after initial display in cost. asking OMB to approve this ICR for the final rule, are listed in 40 CFR part DATES: Additional comments may be three years. Under OMB regulations at 9. submitted on or before December 22, 5 CFR 1320.12(b)(2), the Agency may The following is a summary of the 2004. continue to conduct or sponsor the burden estimates taken from the ICR: ADDRESSES: Submit your comments, collection of information while the Respondents/affected entities: State referencing docket ID number OECA– submission is pending at OMB. Agency, U.S. Territory, or Federal 2004–0022, to (1) EPA online using Abstract: Section 18 of the Federal Agency. Insecticide, Fungicide, and Rodenticide EDOCKET (our preferred method), by e- Act (FIFRA) authorizes EPA to grant Estimated total number of potential mail to [email protected], or by mail emergency exemptions to State, U.S. respondents: 50. to: Environmental Protection Agency, Territorial and Federal agencies to allow Frequency of response: On occasion. EPA Docket Center (EPA/DC), an unregistered use of a pesticide for a Enforcement and Compliance Docket Estimated total/average number of and Information Center, Mail Code limited time if EPA determines that responses for each respondent: 10. emergency conditions exist, whether 2201T, 1200 Pennsylvania Avenue, Estimated total annual burden hours: use of the pesticide under the NW., Washington, DC 20460, and (2) 49,500. exemption will be protective of human OMB at: Office of Information and health and the environment, and to Estimated total annual labor costs: Regulatory Affairs, Office of evaluate the effectiveness of the $2,683,000. Management and Budget (OMB), requested product in allaying the Changes in the ICR Since the Last Attention: Desk Officer for EPA, 725 emergency. This data collection Approval: The annual burden has 17th Street, NW., Washington, DC program is designed to provide EPA decreased from 59,400 to 49,500 hours 20503. with necessary data to evaluate an due to the drop in the overall number FOR FURTHER INFORMATION CONTACT: application for a permit for the of section 18 emergency exemption Gregory Fried, Compliance Assessment temporary shipment and use of a applications filed annually, from 600 for and Media Programs Division, Office of pesticide product for an unregistered the period 1998–2000 to approximately Compliance, Mail Code 2223A, use to mitigate an emergency situation 500 for the period 2001–2003. The 9,900 Environmental Protection Agency, 1200 and to evaluate the effectiveness of that hour decrease in annual burden reflects Pennsylvania Avenue, NW., product in allaying the emergency. an adjustment to the estimated annual Washington, DC 20460; telephone State, U.S. Territorial, and Federal burden for this ICR. number: (202) 564–7016; fax number:

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(202) 564–0050; e-mail address: 31, 2002), or go to http://www.epa.gov/ and are identified on the form and/or [email protected]. edocket. instrument, if applicable. Title: NSPS for Portland Cement Burden Statement: The annual public SUPPLEMENTARY INFORMATION: EPA has Plants (40 CFR part 60, subpart F) reporting and recordkeeping burden for submitted the following ICR to OMB for (Renewal). this collection of information is review and approval according to the Abstract: Particulate matter emissions estimated to average 64.4 hours per procedures prescribed in 5 CFR 1320.12. from portland cement plants cause or response. Burden means the total time, On May 25, 2004, (69 FR 29718), EPA contribute to air pollution that may effort, or financial resources expended sought comments on this ICR pursuant reasonably be anticipated to endanger by persons to generate, maintain, retain, to 5 CFR 1320.8(d). EPA received no public health or welfare. Therefore, or disclose or provide information to or comments. NSPS were promulgated for this source for a Federal agency. This includes the EPA has established a public docket category. time needed to review instructions; for this ICR under Docket ID No. OECA– The control of emissions of develop, acquire, install, and utilize 2004–0022, which is available for public particulate matter from portland cement technology and systems for the purposes viewing at the Enforcement and plants requires not only the installation of collecting, validating, and verifying Compliance Docket and Information of properly designed equipment, but information, processing and Center in the EPA Docket Center (EPA/ also the operation and maintenance of maintaining information, and disclosing DC), EPA West, Room B102, 1301 that equipment. Emissions of particulate and providing information; adjust the Constitution Avenue, NW., Washington, matter from portland cement plants are existing ways to comply with any DC. The EPA Docket Center Public the result of operation of kilns, clinker previously applicable instructions and Reading Room is open from 8:30 a.m. to coolers, raw mill systems, raw mill requirements; train personnel to be able 4:30 p.m., Monday through Friday, dryers, raw material storage, clinker to respond to a collection of excluding legal holidays. The telephone storage, finished product storage, information; search data sources; number for the Reading Room is (202) conveyor transfer points, bagging and complete and review the collection of 566–1744, and the telephone number for bulk loading and unloading systems. information; and transmit or otherwise the Enforcement and Compliance These standards rely on the capture of disclose the information. Respondents/Affected Entities: Docket and Information Center Docket particulate emissions by a baghouse or is: (202) 566–1752. An electronic Portland Cement Plants. electrostatic precipitator. Estimated Number of Respondents: version of the public docket is available In order to ensure compliance with through EPA Dockets (EDOCKET) at 118. these standards, adequate reporting and Frequency of Response: Initially and http://www.epa.gov/edocket. Use recordkeeping is necessary. In the semiannually. EDOCKET to submit or view public absence of such information, Estimated Total Annual Hour Burden: comments, access the index listing of enforcement personnel would be unable 15,978 hours. the contents of the public docket, and to to determine whether the standards are Estimated Total Annual Costs: access those documents in the public being met on a continuous basis, as $1,552,045, which includes $37,000 docket that are available electronically. required by the Clean Air Act. annualized capital/startup costs, When in the system, select ‘‘search,’’ All reports are sent to the delegated $495,600 annual O&M costs, and then key in the docket ID number state or local authority. In the event that $1,019,445 annual labor costs. identified above. there is no such delegated authority, the Changes in the Estimates: There is an Any comments related to this ICR reports are sent directly to the EPA increase of 8,010 hours in the total should be submitted to EPA and OMB regional office. Notifications are used to estimated burden currently identified in within 30 days of this notice. EPA’s inform the Agency or delegated the OMB Inventory of Approved ICR policy is that public comments, whether authority when a source becomes Burdens. This increase is primarily due submitted electronically or in paper, subject to the standard. The reviewing to an increase in the estimated number will be made available for public authority may then inspect the source to of existing affected sources from 113 to viewing in EDOCKET as EPA receives check if the pollution control devices 118 and an increase in the number of them and without change, unless the are properly installed and operated. hours to submit semiannual reports comment contains copyrighted material, Performance test reports are needed as from 16 hours to 24 hours. Confidential Business Information (CBI), these are the Agency’s record of a Dated: November 13, 2004. or other information whose public source’s initial capability to comply Oscar Morales, disclosure is restricted by statute. When with the emission standard and note the Director, Collection Strategies Division. EPA identifies a comment containing operating conditions under which [FR Doc. 04–25822 Filed 11–19–04; 8:45 am] copyrighted material, EPA will provide compliance was achieved. The quarterly a reference to that material in the reports are used for problem BILLING CODE 6560–50–P version of the comment that is placed in identification, as a check on source EDOCKET. The entire printed comment, operation and maintenance, and for including the copyrighted material, will compliance determinations. The FEDERAL COMMUNICATIONS be available in the public docket. standard also requires semiannual COMMISSION Although identified as an item in the reporting of deviations from monitored [EB Docket No. 04–381; DA 04–3048] official docket, information claimed as opacity, as this is a good indicator of the CBI, or whose disclosure is otherwise source’s compliance status. Hearing Designation Order To restricted by statute, is not included in An agency may not conduct or Adjudicate Petition for the official public docket, and will not sponsor, and a person is not required to Reconsideration Filed by Gulf Power be available for public viewing in respond to, a collection of information Company EDOCKET. For further information unless it displays a currently valid OMB AGENCY: Federal Communications about the electronic docket, see EPA’s Control Number. The OMB Control Commission. Federal Register notice describing the Numbers for EPA’s regulations are listed ACTION: Notice. electronic docket at 67 FR 38102 (May in 40 CFR part 9 and 48 CFR chapter 15,

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SUMMARY: On September 27, 2004, the telephone 202–863–2893, facsimile 523–5725. Parties participating in this Enforcement Bureau of the Federal 202–863–2898, or via e-mail at http:// proceeding may elect to receive service Communications Commission www.bcpiweb.com. of the Commission’s issuances in this (Commission) released a Hearing Federal Communications Commission. proceeding through e-mail in lieu of Designation Order (HDO) initiating a Christopher N. Olsen, service by U.S. mail. A party opting for hearing to determine whether Gulf electronic service shall advise the Office Deputy Chief, Enforcement Bureau. Power Company (Gulf Power) is entitled of the Secretary in writing and provide to receive compensation above marginal [FR Doc. 04–25517 Filed 11–19–04; 8:45 am] an e-mail address where service can be cost for any attachments to its utility BILLING CODE 6712–01–P made. Such request may be directed to poles belonging to Florida Cable [email protected]. Telecommunications Association; Bryant L. VanBrakle, Comcast Cablevision of Panama City, FEDERAL MARITIME COMMISSION Secretary. Inc.; Mediacom Southeast, L.L.C.; and [Petition No. P6–04] Cox Communications Gulf Coast, L.L.C [FR Doc. 04–25770 Filed 11–19–04; 8:45 am] (collectively, Cable Operators). To avail Petition of China Shipping Container BILLING CODE 6730–01–P themselves of the opportunity to Lines (Hong Kong) Co., Ltd., for an participate in this hearing, the parties Exemption From the First Sentence of were required to file a written Notice of Section 9(c) of the Shipping Act; FEDERAL RESERVE SYSTEM Appearance with the Office of the Notice of Filing Commission Secretary, stating an Agency Information Collection Notice is hereby given that China intention to appear on the date fixed for Activities: Proposed Collection; Shipping Container Lines (Hong Kong) the hearing and present evidence on the Comment Request Co., Ltd. (‘‘Petitioner’’), a controlled issues specified in the HDO, within 20 carrier as that term is defined by the AGENCY: Board of Governors of the days of the mailing of the HDO to the Shipping Act of 1984, has petitioned, Federal Reserve System parties. pursuant to section 16 of the Shipping SUMMARY: June 15, 1984, the Office of DATES: The HDO was mailed to the Act of 1984, 46 U.S.C. app. 1715, and Management and Budget (OMB) parties on September 27, 2004. The 46 CFR 502.69, for an exemption from delegated to the Board of Governors of parties were required to file their the first sentence of section 9(c) of the the Federal Reserve System (Board) its Notices of Appearance by October 18, 1984 Act, 46 U.S.C. app. 1708(c).1 approval authority under the Paperwork 2004. Petitioner seeks an exemption so that it Reduction Act, as per 5 CFR 1320.16, to ADDRESSES: Federal Communications may reduce its tariff rates upon approve of and assign OMB control Commission, 445 12th Street, SW., publication.2 numbers to collection of information Room TW–204(B), Washington, DC In order for the Commission to make requests and requirements conducted or 20554. a thorough evaluation of the Petition, sponsored by the Board under interested persons are requested to conditions set forth in 5 CFR 1320 FOR FURTHER INFORMATION CONTACT: submit views or arguments in reply to Appendix A.1. Board–approved Rhonda J. Lien, 202–418–7330. the Petition no later than December 6, collections of information are SUPPLEMENTARY INFORMATION: The 2004. Replies shall consist of an original incorporated into the official OMB Enforcement Bureau previously ruled and 15 copies, be directed to the inventory of currently approved that Gulf Power violated section 224 of Secretary, Federal Maritime collections of information. Copies of the the Act, 47 U.S.C. 224, and the Commission, 800 North Capitol Street, OMB 83–Is and supporting statements Commission’s pole attachment rules, 47 NW., Washington, DC 20573–0001, and and approved collection of information CFR 1.1401–1.1418, by charging the be served on Petitioner’s counsel, Brett instruments are placed into OMB’s Cable Operators rates higher than those M. Esber, Esq., Blank Rome LLP, public docket files. The Federal Reserve allowed by the Commission’s rules and Watergate 600 New Hampshire Avenue, may not conduct or sponsor, and the policies and by refusing to negotiate NW., Washington, DC 20037. It is also respondent is not required to respond new rates in good faith. See Florida requested that a copy of the reply be to, an information collection that has Cable Telecommunications Association, submitted in electronic form been extended, revised, or implemented Inc.; Comcast Cablevision of Panama (WordPerfect, Word or ASCII) on on or after October 1, 1995, unless it City, Inc.; Mediacom Southeast, L.L.C.; diskette or e-mailed to displays a currently valid OMB control and Cox Communications Gulf Coast [email protected]. number. L.L.C. v. Gulf Power Company, Copies of the petition are available at Memorandum Opinion and Order, 18 Request for comment on information the Office of the Secretary of the collection proposal FCC Rcd 9599 (Enf. Bur. 2003). Gulf Commission, 800 N. Capitol Street, Power timely filed a Petition for NW., Room 1046. A copy may also be The following information collection, Reconsideration and Request for obtained by sending a request to which is being handled under this Evidentiary Hearing on June 23, 2003. [email protected] or by calling (202) delegated authority, has received initial The complete text of this HDO is Board approval and is hereby published available for inspection and copying 1 China Shipping Container Lines (Hong Kong) for comment. At the end of the comment during normal business hours in the Co., Ltd. is a wholly owned subsidiary of China period, the proposed information FCC Reference Information Center, Shipping Container Lines Co. Ltd. (‘‘CSCL’’). On collection, along with an analysis of April 1, 2004 the Commission issued an Order in Portals II, 445 12th Street, SW., Room Petition No. P4–03, granting CSCL an exemption comments and recommendations CY–A257, Washington, DC 20554. This like that now sought by Petitioner—an exemption received, will be submitted to the Board document may also be purchased from from the first sentence of section 9(c) of the 1984 for final approval under OMB delegated the Commission’s duplicating Act. authority. Comments are invited on the 2 The Petitioner, to date, has operated only contractor, Best Copy and Printing, Inc. outside of the United States’ trades. Petitioner following: (BCPI), Portals II, 445 12th Street, SW., advises that it will commence operations in the U.S. a. whether the proposed collection of Room CY–B402, Washington, DC 20554, trades on or about January 1, 2005. information is necessary for the proper

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performance of the Federal Reserve’s (TDD) users may contact (202–263– FEDERAL RESERVE SYSTEM functions; including whether the 4869), Board of Governors of the Federal information has practical utility; Reserve System, Washington, DC 20551. Change in Bank Control Notices; b. the accuracy of the Federal Acquisition of Shares of Bank or Bank Proposal to approve under OMB Reserve’s estimate of the burden of the Holding Companies delegated authority the extension for proposed information collection, three years, without revision, of the The notificants listed below have including the validity of the following report: applied under the Change in Bank methodology and assumptions used; Control Act (12 U.S.C. 1817(j)) and c. ways to enhance the quality, utility, Report title: Home Mortgage § 225.41 of the Board’s Regulation Y (12 and clarity of the information to be Disclosure Act (HMDA) Loan/ CFR 225.41) to acquire a bank or bank collected; and Application Register. d. ways to minimize the burden of holding company. The factors that are Agency form number: FR HMDA– information collection on respondents, considered in acting on the notices are LAR. including through the use of automated set forth in paragraph 7 of the Act (12 collection techniques or other forms of OMB control number: 7100–0247. U.S.C. 1817(j)(7)). The notices are available for information technology. Frequency: Annual. immediate inspection at the Federal DATES: Comments must be submitted on Reporters: State member banks, Reserve Bank indicated. The notices or before January 21, 2005. subsidiaries of state member banks, also will be available for inspection at ADDRESSES: You may submit comments, subsidiaries of bank holding companies, the office of the Board of Governors. identified by FR HMDA–LAR, by any of U.S. branches and agencies of foreign Interested persons may express their the following methods: banks (other than federal branches, views in writing to the Reserve Bank • Agency Web site: http:// federal agencies, and insured state indicated for that notice or to the offices www.federalreserve.gov. Follow the branches of foreign banks), commercial of the Board of Governors. Comments instructions for submitting comments at lending companies owned or controlled must be received not later than http://www.federalreserve.gov/ by foreign banks, organizations under December 6, 2004. generalinfo/foia/ProposedRegs.cfm. section 25 or 25A of the Federal Reserve A. Federal Reserve Bank of Kansas • Federal eRulemaking Portal: http:// Act. City (Donna J. Ward, Assistant Vice www.regulations.gov. Follow the Annual reporting hours: 150,942 President) 925 Grand Avenue, Kansas instructions for submitting comments. hours. City, Missouri 64198–0001: • E–mail: Estimated average hours per response: 1. Embry W. Williams, Jr., Amarillo, [email protected]. Texas; to acquire voting shares of Union Include docket number in the subject State member banks, 242 hours; and mortgage subsidiaries, 192 hours. BancShares, Inc., Clayton, New Mexico, line of the message. and thereby indirectly acquire voting • FAX: 202/452–3819 or 202/452– Number of respondents: 519 State shares of The First National Bank of 3102. member banks, and 132 mortgage New Mexico, Clayton, New Mexico. • Mail: Jennifer J. Johnson, Secretary, subsidiaries. Board of Governors of the Federal Board of Governors of the Federal Reserve General description of report: This System, November 16, 2004. Reserve System, 20th Street and information collection is mandatory (12 Robert deV. Frierson, Constitution Avenue, N.W., U.S.C. 2803). The information is not Deputy Secretary of the Board. Washington, DC 20551. given confidential treatment, however, All public comments are available information that might identify [FR Doc. 04–25773 Filed 11–19–04; 8:45 am] from the Board’s web site at individual borrowers or applicants is BILLING CODE 6210–01–S www.federalreserve.gov/generalinfo/ given confidential treatment under foia/ProposedRegs.cfm as submitted, exemption 6 of the Freedom of FEDERAL RESERVE SYSTEM except as necessary for technical Information Act (5 U.S.C. 552(b)(6)) and reasons. Accordingly, your comments section 304 (j)(2)(B) of HMDA (12 U.S.C. Formations of, Acquisitions by, and will not be edited to remove any 2803). Mergers of Bank Holding Companies identifying or contact information. Abstract: The information reported Public comments may also be viewed and disclosed pursuant to this The companies listed in this notice electronically or in paper in Room MP– collection is used to further the have applied to the Board for approval, 500 of the Board’s Martin Building (20th purposes of HMDA. These include: (1) pursuant to the Bank Holding Company and C Streets, N.W.) between 9:00 a.m. to help determine whether financial Act of 1956 (12 U.S.C. 1841 et seq.) and 5:00 p.m. on weekdays. institutions are serving the housing (BHC Act), Regulation Y (12 CFR Part FOR FURTHER INFORMATION CONTACT: A needs of their communities; (2) to assist 225), and all other applicable statutes copy of the proposed form and public officials in distributing public– and regulations to become a bank instructions, the Paperwork Reduction sector investments so as to attract holding company and/or to acquire the Act Submission (OMB 83–I), supporting private investment to areas where it is assets or the ownership of, control of, or statement, and other documents that needed; and (3) to assist in identifying the power to vote shares of a bank or will be placed into OMB’s public docket possible discriminatory lending patterns bank holding company and all of the files once approved may be requested and enforcing anti–discrimination banks and nonbanking companies from the agency clearance officer, whose statutes. owned by the bank holding company, name appears below. including the companies listed below. Cindy Ayouch, Federal Reserve Board Board of Governors of the Federal Reserve The applications listed below, as well Clearance Officer (202–452–3829), System, November 16, 2004. as other related filings required by the Division of Research and Statistics, Jennifer J. Johnson, Board, are available for immediate Board of Governors of the Federal Secretary of the Board. inspection at the Federal Reserve Bank Reserve System, Washington, DC 20551. [FR Doc. 04–25772 Filed 11–19–04; 8:45 am] indicated. The application also will be Telecommunications Device for the Deaf BILLING CODE 6210–01–S available for inspection at the offices of

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the Board of Governors. Interested Holding Company, Antioch, Illinois, availability of funds for family planning persons may express their views in and thereby indirectly acquire voting services grants. This notice contained an writing on the standards enumerated in shares of State Bank of the Lakes, error. An eligible Population/area was the BHC Act (12 U.S.C. 1842(c)). If the Antioch, Illinois. not listed as available for competition in proposal also involves the acquisition of Board of Governors of the Federal Reserve 2005. A document correcting the a nonbanking company, the review also System, November 16, 2004. omission of the Seattle Population/area includes whether the acquisition of the Robert deV. Frierson, as competitive in 2005 was published in nonbanking company complies with the Deputy Secretary of the Board. the Federal Register of Tuesday, August standards in section 4 of the BHC Act 10, 2004. Since that time, two additional [FR Doc. 04–25774 Filed 11–19–04; 8:45 am] (12 U.S.C. 1843). Unless otherwise Populations/areas, Illinois, Chicago area noted, nonbanking activities will be BILLING CODE 6210–01–S and Arizona, Navajo Nation, have conducted throughout the United States. become available for competition in Additional information on all bank 2005. This document corrects the holding companies may be obtained DEPARTMENT OF HEALTH AND Federal Register notice of Wednesday, from the National Information Center HUMAN SERVICES July 7, 2004, to include all Populations/ website at www.ffiec.gov/nic/. areas available for competition in 2005. Unless otherwise noted, comments Announcement of Anticipated FOR FURTHER INFORMATION CONTACT: regarding each of these applications Availability of Funds for Family Susan B. Moskosky, 301–594–4008. must be received at the Reserve Bank Planning Services Grants indicated or the offices of the Board of Correction Governors not later than December 16, AGENCY: Department of Health and 2004. Human Services, Office of the Secretary, In the Federal Register of July 7, Office of Public Health and Science, 2004, FR Doc. 03–15514, on page A. Federal Reserve Bank of Chicago Office of Population Affairs. 41,114, in the second column under II. (Patrick Wilder, Assistant Vice ACTION: Notice; correction. Award Information, correct the 6th and President) 230 South LaSalle Street, 7th lines of the first paragraph to read Chicago, Illinois 60690–1414: SUMMARY: The Office of Population ‘‘$47 million for competing Title X 1. Wintrust Financial Corporation, Affairs, OPHS, HHS published a notice family planning services grant awards in Lake Forest, Illinois; to acquire 100 in the Federal Register of Wednesday, 19;’’ and on page 41,115, correct Table percent of the voting shares of Antioch July 7, 2004, announcing the anticipated I to read:

TABLE I

Approximate fund- Application due Approximate grant States/populations/areas to be served ing available date funding date

Region I: Massachusetts ...... $5,217,000 09–01–04 01–01–05 Region II: New York State ...... 9,635,000 03–01–05 07–01–05 Puerto Rico ...... 2,389,000 03/01/05 07/01/05 Region III: Washington, D.C...... 1,053,000 09–01–04 01–01–05 Region IV: Kentucky ...... 5,203,000 03–01–05 07–01–05 South Carolina ...... 5,569,000 03–01–05 07–01–05 Tennessee ...... 5,914,000 03–01–05 07–01–05 Region V: Illinois, Chicago area ...... 200,225 06–01–05 09–30–05 Region VI: Arkansas ...... 3,241,000 11–01–04 03–01–05 New Mexico ...... 2,228,000 09–01–04 01–01–05 Region VII: Kansas ...... 2,332,000 03–01–05 07–01–05 Region VIII: No areas competitive in FY 2005. Region IX: Gila River Indian Community ...... 251,000 03–01–05 07–01–05 Government of Guam ...... 452,000 03–01–05 07–01–05 Republic of Palau ...... 99,000 03–01–05 07–01–05 Federated States of Micronesia ...... 411,000 03–01–05 07–01–05 Arizona, Navajo Nation ...... 640,000 03–01–05 07–01–05 Region X: Idaho ...... 1,318,000 03–01–05 07–01–05 Oregon, Multnomah County ...... 330,000 03–01–05 07–01–05 Washington, Seattle ...... 158,450 03–01–05 07–01–05

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Dated: November 12, 2004. DEPARTMENT OF HEALTH AND youth violence and youth interpersonal Alma L. Golden, HUMAN SERVICES violence will be used synonymously. Deputy Assistant Secretary for Population This program addresses the ‘‘Healthy Affairs. Centers for Disease Control and People 2010’’ focus area of Injury and Prevention [FR Doc. 04–25758 Filed 11–19–04; 8:45 am] Violence Prevention. For a copy of ‘‘Healthy People 2010’’ visit the Internet BILLING CODE 4150–34–P Cooperative Agreement Program for site: http://www.health.gov/ the National Academic Centers of healthypeople. Excellence on Youth Violence Measurable outcomes of the program DEPARTMENT OF HEALTH AND Prevention will be in alignment with one (or more) HUMAN SERVICES of the following performance goals for Announcement Type: New. the National Center for Injury Administration on Aging Funding Opportunity Number: CE05– 018. Prevention and Control (NCIPC): Catalog of Federal Domestic 1. Increase the capacity of injury 2005 White House Conference on prevention and control programs to Aging Policy Committee Assistance Number: 93.136. Key Dates: address the prevention of injuries and violence. AGENCY: Administration on Aging, HHS. Letter of Intent Deadline: December 22, 2004. 2. Monitor and detect fatal and non- ACTION: Notice of meeting. Application Deadline: February 10, fatal injuries. 3. Conduct a targeted program of 2005. research to reduce injury-related death SUMMARY: Pursuant to Section 10(a) of I. Funding Opportunity Description and disability. the Federal Advisory Committee Act as Special Guidelines for Technical amended (5 U.S.C. Appendix 2), notice Authority: This program is authorized Assistance: is hereby given of the third Policy under sections 301(a) [42 U.S.C. 241(a)] and Conference Call: Technical assistance Committee meeting concerning 391(a) [42 U.S.C. 280b(a)] of the Public will be available for potential applicants planning for the 2005 White House Service Health Act, as amended. during one conference call. Conference on Aging. The meeting will Purpose: The Centers for Disease The call for eligible applicants will be be open to the public, with attendance Control and Prevention (CDC) held on December 9, 2005 from 2:30 limited to space available. Individuals announces the availability of fiscal year p.m. to 4 p.m. (eastern time). The who plan to attend and need special (FY) 2005 cooperative agreement funds conference can be accessed by calling 1– assistance, such as sign language to establish up to ten National 888–528–9061 and entering access code interpretation or other reasonable Academic Centers of Excellence (ACE) 18046. accommodations, should inform the on Youth Violence Prevention, serving The purpose of the conference call is as national models for the prevention of to help potential applicants: contact person listed below in advance 1. Understand the Request for of the meeting. youth violence. The purpose of the Centers is to help communities prevent Application Process for the RFA (CE05– DATES: The meeting will be held youth interpersonal violence. As of 018) for the National Academic Centers Wednesday, December 1, 2004, from 9 2005, Centers will be supported for up of Excellence on Youth Violence a.m. to 5 p.m. to ten years to promote a stable, long Prevention. term focus on the complex problem of 2. Understand the scope and intent of ADDRESSES: The meeting will be held at youth violence, fostering the RFA (CE05–018) for the National the American Association of Homes and Academic Centers of Excellence on multidisciplinary and multi-sectoral Services for the Aging, 2519 Youth Violence Prevention. interactions that can stimulate scientific Connecticut Avenue, NW., Conference 3. Become familiar with the Public creativity, speed new developments in Room, Washington, DC 20008–1520. Health Services funding policies and youth interpersonal violence research application and review procedures. FOR FURTHER INFORMATION CONTACT: and practice, and hasten translation of Participation in this conference call is Nora Andrews, (301) 443–2874, or e- knowledge into health and community not mandatory. At the time of the call, mail at [email protected]. practice. Centers are expected to if you have problems accessing the actively foster an environment conference call, please call 404–639– SUPPLEMENTARY INFORMATION: Pursuant conducive to reciprocally beneficial to the Older Americans Act 7550 for assistance. collaborations among health scientists, Program Objectives: The goal of this Amendments of 2000 (Pub. L. 106–501, social scientists and the affected program is to reduce the incidence of November 2000), the Policy Committee communities with the common goal of youth violence in the defined will meet to discuss delegate reducing youth interpersonal violence. community by achieving the following participation, the conference theme, and Youth violence is defined as: The objectives: to review and discuss work of the intentional use of physical force or • Monitoring the magnitude and subcommittees. power, threatened or actual, exerted by distribution of youth interpersonal or against children, adolescents or Josefina G. Carbonell, violence. young adults, ages 10–24, which results • Building the scientific Assistant Secretary for Aging. in or has a high likelihood of resulting infrastructure necessary to support the [FR Doc. 04–25747 Filed 11–19–04; 8:45 am] in injury, death, psychological harm, development and widespread BILLING CODE 4154–01–P maldevelopment, or deprivation. It application of effective youth violence includes violence between individuals prevention interventions. or groups who may or may not know • Promoting interdisciplinary each other. It frequently takes place research strategies to address the outside the home, in the streets, or in problem of youth violence. institutional settings, such as schools, • Fostering collaboration between workplaces, and prisons. Hereafter, academic researchers and communities.

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• Mobilizing and empowering impact of center activities and research collaborate with ACE staff on research, communities to address the problem of in the defined community. interpretation of findings, and the youth violence. • Identify youth violence prevention production of publications and Activities: Awardee activities during priorities within the defined presentations to disseminate study the course of the five-year award for this community. results. program are listed below. Additional • Carry out the center’s participatory, • Facilitate regular communication information on the program activities is community-based core youth between CDC and the grantees to provided in the application content of interpersonal violence research include, but not limited to conference this announcement. project(s) and the center’s five-year calls and meetings, including the • Apply and refine a logic model for research agenda. Each center is required convening of annual ACE meetings to the academic center of excellence to conduct at least one core research facilitate research collaboration and adapted from the national ACE Program project consistent with both the NCIPC information sharing among centers. conceptual framework or logic model Research Agenda and NCIPC’s mission. • Review, monitor, and evaluate (See Appendix 1 for a description) to fit • Plan the core research project in scientific and operational the specific inputs, activities, outputs, collaboration with community partners. accomplishments to assure progress and outcomes of the proposed center. • Refine, carry out and evaluate the toward program goals and objectives. • Develop and implement a center center’s community mobilization plan The review will be based on the center’s evaluation plan and demonstrate how in partnership with a community’s logic model and the critical components the center’s evaluation contributes to individuals, groups, and organizations of the model that are related to the CDC’s national program evaluation, on a participatory and sustained basis. achievement of core performance including the core performance (See Appendix 3, the glossary, for a indicators. The review process will indicators (see Appendix 2 for a list of definition of community mobilization.) include but not be limited to conference the indicators.) • When appropriate, collaborate with • calls, site visits, annual meetings, and Develop, implement and evaluate CDC, community partners, and other required reports. center projects in conjunction with the ACE centers to develop and finalize • Collect, organize and disseminate center’s ‘‘defined community’’, (whether design for studies and activities, information on ACE activities, including geographic or a non-geographic sub- methodology, data collection measures, research. Inform recipients about any grouping) which the center’s activities methods, and analyses and disseminate CDC policies, laws, and regulations will serve. Community is defined as a the results through presentations and pertaining to public health research and group of people who share some or all publications to broad audiences, programmatic activities, conduct of the following: geographic boundaries; including public health. inquiries concerning allegations of • a sense of membership; culture and Collect and report necessary data scientific misconduct, and take language; common norms, interests, or and information to CDC to assess necessary steps to bring program into values; and common health risks or progress toward centers’ goals and compliance. conditions (CDC/ATSDR Principles of objectives and monitor overall • When appropriate, assist in the Community Engagement, IOM 2002). performance. This should include, but development of a research protocol(s) Community refers to a population that will not be limited to, information for IRB review by all performance sites has a distinct identity. It can mean related to the ACE Performance involved in the research project. If CDC residents of a geographic area, be that a Indicators. (See Appendix 2 for list of researchers are significantly involved in catchment’s area, neighborhood, school indicators). the project, the CDC IRB will review and • district, city, county or region within a Develop an infrastructure of approve the protocol initially and on at county. It can be used with a modifier personnel and resources to support least an annual basis until the research or clause to describe a non- center functions and processes. This project is completed. geographically based sub-grouping such infrastructure should ensure that as, but not exclusively: a community of adequate personnel, facilities, II. Award Information youth violence prevention workers, a technology, and university support Type of Award: Cooperative community of health professionals, or exists to accomplish the goals and Agreement. CDC involvement in this an ethnic or language community. objectives of the center. program is listed in the Activities • • Establish or maintain a center Provide training, technical Section above. community advisory committee to work assistance, and mentoring to health Mechanism of Support: U49. with the defined community to achieve professionals, researchers, students, Fiscal Year Funds: 2005. center goals. See Appendix 3, the community members, and other Approximate Total Funding: glossary, for a definition and partners, as appropriate, including other $6,800,000 (This amount is an estimate, composition of the community funded Academic Centers of Excellence and is subject to availability of funds). committee. on Youth Violence Prevention. Approximate Number of Awards: 7– • Establish and maintain partnerships • Obtain approval of the study 10. (e.g., state and local health departments, protocol by the recipient’s local Approximate Average Award: youth violence prevention and youth Institutional Review Board (IRB). $830,000. serving organizations, community Collaborate with CDC in the Floor of Award Range: $680,000. groups and agencies, faith-based development of a research protocol for Ceiling of Award Range: $980,000 organizations and local businesses, and CDC Institutional Review Board (IRB) (Ceilings are for the first 12-month academic units), and include these review, if appropriate. budget period and include both indirect partners, when applicable, in the center In a cooperative agreement, CDC staff and direct costs). activities. See Appendix 3, the glossary, is substantially involved in the program Anticipated Award Date: September for a definition and composition of activities, above and beyond routine 1, 2005. partnerships. grant monitoring. CDC activities for this Budget Period Length: 12 months. • Establish and/or enhance program are as follows: Project Period Length: Five years. surveillance systems to better measure • Provide scientific input, serve as a Throughout the project period, CDC’s the problem of youth violence and the scientific and professional resource, and commitment to continuation of awards

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will be conditioned on the availability together address the objectives of a Applications that do not meet the of funds, evidence of satisfactory center: (1) Administrative and above requirements will be considered progress by the recipient (as Infrastructure Core, (2) Surveillance and non-responsive. documented in required reports and site Research Core and (3) Outreach and Individuals with the above-listed visits), and the determination that Education Core. The essential skills, knowledge, and resources continued funding is in the best interest characteristics of a National Academic necessary to carry out the proposed of the Federal Government. Center of Excellence on Youth Violence research are invited to work with their Prevention are as follows: institution to develop an application for III. Eligibility Information • A core faculty in fields such as support. Individuals from III.1. Eligible Applicants public health, epidemiology, underrepresented racial and ethnic Eligible applicants are academic biostatistics, social sciences, behavioral groups as well as individuals with institutions/centers with a focus on and environmental sciences, health and disabilities are always encouraged to health, such as: youth policy, economics, evaluation, apply for CDC programs. Each • and health administration. institution may submit only one Public and private nonprofit • application per round of competition. universities; Established working relationships • Colleges; with multidisciplinary faculty in the IV. Application and Submission • University-associated teaching fields listed above and in other Information disciplines, such as, but not limited to, hospitals. IV. 1. Address To Request Application Eligible applicants may enter into medicine, psychology, nursing, social Package contracts, including consortia work, education, urban planning, youth agreements, as necessary to meet the development and business. To apply for this funding opportunity, requirements of the program and • Graduate training programs relevant use application form PHS 398 (OMB strengthen the overall application. A to youth violence prevention. number 0925–0001 rev. 5/2001). Forms, Bona Fide Agent is an agency/ • Demonstrated relationships with a attachments and instructions are organization identified by the academic broad range of community partners and available in an interactive format on the institutions/centers as eligible to submit expertise in developing, implementing CDC Web site, at the following Internet an application under the academic and evaluating community-based youth address: http://www.cdc.gov/od/pgo/ institutions/centers eligibility in lieu of participatory research and mobilization forminfo.htm. an academic institutions/centers activities. Forms and instructions are also application. If you are applying as a • Demonstrated experience on the available in an interactive format on the bona fide agent of academic applicant’s project team in conducting, National Institutes of Health (NIH) Web institutions/centers, you must provide a evaluating, and publishing community- site at the following Internet address: letter from the academic institutions/ based participatory research (CPBR) in http://grants.nih.gov/grants/funding/ centers as documentation of your status. peer-reviewed journals. (See Appendix phs398/phs398.html. Place this documentation behind the 3, the glossary, for a definition of If you do not have access to the first page of your application form. Community-based participatory Internet, or if you have difficulty research). accessing the forms on-line, you may III.2. Cost Sharing or Matching • Effective and well-defined working contact the CDC Procurement and Matching funds are not required for relationships within the performing Grants Office Technical Information this program announcement. organization and with outside entities Management Section (PGO–TIM) staff at: 770–488–2700. Application forms III.3. Other (as evidenced by letters of support and in memoranda of understanding). can be mailed to you. CDC will not accept and review • An overall match between the IV. 2. Content and Form of Application applications with budgets greater than applicant’s proposed research objectives Submission the ceiling of the award range. and the program objectives as described Applications with budgets that exceed Letter of Intent (LOI): Prospective under the heading, ‘‘Program the ceiling of the award, which includes applicants are asked to submit a Letter Objectives’’. both direct and indirect costs, will be of Intent (LOI) that includes the considered non-responsive, and will not Only one application per institution following information and written in the be entered into the review process. You will be accepted. following format: will be notified that your application Note: Title 2 of the United States Code • Maximum Number of Pages: Three. did not meet the submission section 1611 states that an organization • Font Size: 12-point unreduced. requirements. described in section 501(c)(4) of the Internal • Paper Size: 8.5 by 11 inches. Special requirements: If your Revenue Code that engages in lobbying • Page Margin Size: One inch. application is incomplete or non- activities is not eligible to receive Federal • Printed only on one side of page. funds constituting an award, grant, or loan. responsive to the requirements listed in • Single spaced. this section, it will not be entered into • Written in plain language, avoid Individuals Eligible To Become jargon. the review process. You will be notified Principal Investigators that your application did not meet Your LOI must contain the following submission requirements. Principal Investigator qualifications information: • Late applications will be considered are as follows: • Descriptive title of the proposed non-responsive. See section ‘‘IV.3 • A principal investigator who has Center. Submission Dates and Times’’ for more conducted community-based youth • Name, address, e-mail address, information on deadlines. violence prevention research, published telephone number, and facsimile A National Academic Center of the findings in peer-reviewed journals, number of the Principal Investigator. Excellence on Youth Violence and has specific authority and • Names of other key personnel. Prevention is expected to have the responsibility to carry out the proposed • Participating institutions. following core components which project. • Number and title of this RFA.

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• Brief description of the proposed reflects the ability to carry out proposed projects and activities; acquire, manage, center’s research focus (a three to four center activities. and maintain the communications and line description). (b) Evaluation: Applicants need to information systems necessary to • Brief description of the scope and describe how they will develop a plan operate an ACE; and acquire and intent of the proposed center work for evaluating the progress of the center maintain university support for the (maximum one paragraph). in achieving its goals and the national center. To assure that applicants have performance indicators. Applicants this capacity, applicants should, at a Note: Attachments, booklets, or other should describe their capacity to: documents will not be accepted with the LOI. minimum: establish a five-year evaluation plan; (i) Provide an organizational chart for Application: Follow the PHS 398 conduct center-level evaluation; and the center showing all organizational application instructions for content and collect data to determine the units and functions. The chart should formatting of your application. If the performance of the center using the also reflect the activities articulated in instructions in this announcement differ national performance indicators. (See the center’s logic model. in any way from the PHS 398 Appendix 2 for a description of (ii) Describe the center’s staffing and instructions, follow the instructions in Developing an Evaluation Framework: management plan. Describe each this announcement. For further National Academic Centers of proposed position and discuss how the assistance with the PHS 398 application Excellence in Youth Violence position provides the scientific and form, contact PGO–TIM staff at 770– Prevention.) To assure that applicants technical expertise needed to carry out 488–2700, or contact GrantsInfo, have this capacity, applicants should, at both research and non-research Telephone (301) 435–0714, e-mail: a minimum: activities. Describe the minimum [email protected]. (i) Describe their center-level logic criteria and the required expertise for Your application should address model specifying the center’s youth each position. Describe the activities to be conducted over the violence prevention priorities and qualifications of the proposed staff, how entire five-year project period. expected outcomes. Within the logic the proposed staff will interact with For more information, see the CDC model, applicants should define the each other, with other faculty outside Web site at: http://www.cdc.gov/ inputs, activities, outputs, outcomes, the center, and with the university’s funding.htm. evaluation, and contextual conditions leaders to accomplish the center’s goals for the center. The logic model should and objectives. This discussion should This announcement uses just-in-time be adapted from the national ACE highlight the following center staff: concepts. This announcement uses the Program conceptual framework (See leadership; research; evaluation; non-modular budgeting format. The Appendix 2.) In addition to the logic communication and dissemination; application narrative should consist of model, a narrative description of each training; information management; and the following information: component must be included. Please fiscal and administration staff. (1) Administrative and Infrastructure include the center’s mission within the (iii) Describe how your center will be Core: To ensure that applicants have the narrative, limiting the mission statement integrated within the university administrative and infrastructure to one to two sentences. Further, within structure. Describe the facilities in capacity to achieve the program this narrative briefly describe how the which staff will work and how these objectives, applicants should describe center’s model is related to the national facilities enhance the center’s ability to the following: ACE Program conceptual framework. complete the proposed activities. (a) Defined Community: Applicants (ii) Document experiences of center Describe the center’s plan to enhance its need to define and describe the center’s faculty in conducting process, core capacity over the five-year period, mission and the primary community outcomes, and impact evaluations in the including the commitment and (whether geographic or a non- past five years and address how the capability to obtain the communication, geographic sub-grouping) that the center will continue or enhance its information systems, and other tools center’s activities will serve. (See evaluation expertise as it relates to the necessary to accomplish goals and Appendix 3, Glossary of Terms, for a center-level evaluation. objectives (i.e., computer equipment, definition of community). Applicants (iii) Describe how they will create a telephones, facsimile machines, should, at a minimum, address the five-year plan for evaluating the critical scanners, scientific software, etc.). following characteristics of the defined components of the center’s logic model. (iv) Describe plans for cross- community, as they pertain to the type The plan should be developed in disciplinary training of new and of community chosen: the size of the collaboration with the center’s established investigators, including: community; the demographic make up, community committee and center adequacy of facilities for workshops, socioeconomic and cultural partners and include: a description of seminars and other educational characteristics; levels of youth violence how the plan will be developed; activities; capacity to train predoctoral and the prevalent risk and protective identification of resources and staff and/or postdoctoral students in multi- factors of, or encountered by, the responsible for evaluation; specific disciplinary interpersonal youth defined community; the youth violence evaluation questions, goals and violence prevention research; and prevention infrastructure, levels of objectives; quantitative and qualitative experience in effectively conducting organization and support for assessment of the centers activities to mentoring and career development interpersonal youth violence prevention demonstrate program accomplishments activities. interventions in the defined community; and challenges; and a plan for (d) Collaborations/Partnerships: and the existence of health, education, identifying emerging challenges. Applicants need to develop and justice, and other policies related to (c) Infrastructure: Applicants should describe the nature and range of youth violence prevention in the describe an infrastructure of personnel partnerships needed to carry out center defined community. Applicants should and resources required to develop activities. An infrastructure of resources describe the linkages between the center center functions and processes. and personnel is required to support and the defined community and Applicants should have the capacity to collaboration with partners and joint document appropriate levels of recruit, hire, and retain faculty and staff community mobilization efforts. (See engagement and collaboration that with the expertise to implement center Appendix 3, Glossary of Terms, for an

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operational definition). Applicants Applicants need to enhance or methodologies are shared among the should have the capacity to: Establish surveillance efforts and conduct projects), interrelated (each project must and maintain relationships with research, as described below: have goals and objectives that focus on partners; facilitate the establishment (a) Surveillance: Applicants should the common theme), and and maintenance of the center’s document experience in successfully multidisciplinary (representing different community committee(s); and developing, implementing and scientific backgrounds, training and collaborate with partners on the evaluating community level expertise). Centers must develop planning and implementation of core surveillance efforts in the last five years research projects on youth interpersonal research, dissemination, training, and and describe plans to develop and/or violence prevention with a conceptual mobilization efforts. To assure that enhance surveillance systems to be able focus on the defined community and applicants have this capacity, applicants to measure the problem of youth that provide evidence of the potential should: violence as well as determine impact of for meaningful inter-disciplinary (i) Describe the plan for establishing Center activities and research in the collaboration, and that respond to the or maintaining the center’s community defined community. Applicants should NCIPC Research Agenda. Clear committee(s). (See Appendix 3, Glossary address how your system will: Measure definitions of procedures used to select of Terms for additional information youth violence patterns in the defined proposed and future projects are regarding the center community community; be used to guide planning required. committee.) This plan should include, and evaluation of youth violence The core research project should at a minimum, the following: The programs (e.g., determine in what address the following types of applied intended composition and membership components and areas where prevention interpersonal youth violence prevention of the committee and how the efforts are making a difference); and research articulated in the NCIPC constituents reflect the defined advance the public health research Research Agenda and that furthers the community; the proposed mission and related to youth violence. All proposed center’s work in the defined role for the committee in the center’s surveillance activities should include an community: intervention research, planning and activities, consistent with appropriate translation and which examines the efficacy, the logic model; a process for dissemination plan. To assure that effectiveness, economic efficiency of developing or refining guidelines for the applicants have this capacity, applicants strategies, programs and policies in community committee over the first should, at a minimum: Document reducing or preventing youth year of the funding period; a plan for experience in successfully developing, interpersonal violence; and communication between the community implementing and evaluating dissemination and dissemination committee and the center staff. community level surveillance efforts in implementation research (which Applicants must provide evidence of the last five years. includes research on the targeted commitment and cooperation of current (b) Research: Applicants should distribution of information to a specific and potential members of the center’s describe center capacity to: Establish a audience; and research on the use of community committee (e.g., letters of five-year research agenda; conduct core strategies to introduce or change support, memorandums of research and other prevention research evidence-based youth interpersonal understanding, or examples of prior as described in the research agenda; and violence prevention interventions in collaboration.) effectively collaborate with partners in specific settings). (ii) Identify and describe other the identification, planning, Applicants should also demonstrate partners such as local and state health implementation, and dissemination of the links to the community within departments, youth violence prevention core research. To assure that applicants which the research is framed, organizations, community groups and have this capacity, applicants should, at documenting appropriate levels of agencies, youth organizations, and a minimum: Document experience in support and collaboration. If the academic units. At a minimum, successfully conducting, evaluating, and research agenda is also supported by applicants need to briefly describe: Past publishing youth interpersonal violence non-ACE Program funding sources, partners, new partners, and proposed prevention research in the past five identify the other funders. partners; the proposed methods for years; and describe community-based The types of research projects centers establishing and maintaining these youth interpersonal violence prevention are expected to carry out are listed partnerships, including how the lessons research activities and provide evidence below: learned from previous partnerships will of community involvement in those (i) Core research projects are the larger be applied to the proposed methods; activities; and describe experience in scale projects with annual budgets and the partners’ involvement in the conducting community-based exceeding 150,000 a year, including center’s proposed activities. In this participatory research in the past five direct and indirect costs, and lasting up section, applicants should specifically years. to five years. These projects typically address the partners’ role in developing Applicants should describe (the core will test hypotheses and employ more this proposal and partners’ expectations elements of) a five year research agenda, sophisticated methodologies and/or about their roles in the planning and including a description of the core larger sample sizes than small studies. implementation of the center’s youth interpersonal violence prevention Core research projects require an RO1 activities. research project(s), and smaller studies level summary as described in PHS 398 (iii) Provide evidence of commitment and seed projects, as described below. (Revised 5/01 and updated 6/28/02) and cooperation of current and potential The research projects and the agenda guidelines. partners (e.g., letters of support, should reflect the potential for a center (ii) Small studies of 25,000–150,000 a memorandums of understanding, and with a clear mission that promotes year, including direct and indirect costs, examples of prior collaborations). multidisciplinary collaboration and for one to three years duration, might be 2. Surveillance and Research Core: career development. The research extensions of seed projects, either Applicants need to describe and agenda must represent more than an further developing methods or develop the infrastructure of resources interesting collection of projects. hypotheses in preparation for a larger and personnel required to support Research projects must be investigation, or might be stand alone surveillance and research in the center. interdependent (materials, results, data, investigations sufficient to yield results

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worthy of publication in a peer- 3. Outreach and Education Core: To information to describe the community reviewed journal and/or a technical ensure that applicants have the capacity mobilization plan: report for a legislative body, to achieve the outreach and education • Title of the plan; governmental agency or youth violence program objectives, applicants should • Core staff and community partners; prevention organizations. describe the following: • Institution(s)/partners involved in (iii) Seed projects, under 25,000 (a) Community Mobilization: the project; require a short write-up describing the Applicants need to describe a draft plan • Indication of whether the youth interpersonal violence prevention for community mobilization. Applicants community mobilization plan is new or context of the study, the objective, the should describe the infrastructure of ongoing. (If ongoing, describe the prior design, the setting and participants, the resources and personnel to support work on this plan.) intervention being addressed, main community mobilization activities in • Describe how the center will outcome measurements, expected the center and to develop and collaborate with partners: In the results, timelines, costs. implement a community mobilization refinement of the CMP, in the The applicant should use the plan involving the primary community development of the community following template to describe each the center’s activities will serve. For a mobilization methodology, for proposed research project: definition of Community Mobilization community recruitment, to report and • Title of the project. and Community Mobilization Plan • disseminating information and Project Director/Lead Investigator (CMP), see Appendix 3, Glossary of activities, and to evaluate CMP for the project. Terms. The two overriding goals of a outcomes. • community mobilization plan should be Institution(s)/partners involved in • Summary of the Community to: enhance the community’s capacity to the project. Mobilization Plan. • Categorization of the type of address the problem of youth violence This should include: research (such as, but not exclusively, and prevent or reduce youth violence. (i) Background; intervention, dissemination, and (For additional Guidance on how to (ii) How the plan furthers the defined dissemination-implementation develop a CMP, see: http:// community youth violence prevention research). www.phppo.cdc.gov/dphsdr/ needs, and priorities; • Relationship of the project to the documents/MAPPone_pager.doc and (iii) Describe how the CMP is center’s mission and health priorities. http://mapp.naccho.org/ integrated into the center’s five-year • Relationship of the project to local mapp_introduction.asp). youth interpersonal violence prevention Applicants should have the capacity research agenda and the centers priorities, HHS objectives (e.g., Healthy to: establish a five-year community mission; People 2010), and NCIPC Research mobilization plan (CMP); conduct (iv) Goals and objectives; Agenda. community mobilization activities as (v) Proposed timeframe for the plan; • Indication of whether the project is required in the CMP; and effectively (vi) Setting and context; new or ongoing. (If ongoing, describe collaborate with partners in the (vii) Methods and measures; the prior work on this project.) identification, planning, (viii) Community definition, • Evidence of community implementation, and evaluation of the participation and recruitment strategy; participation in the planning, CMP. In addition, the CMP should (ix) Expected outcomes; implementation, and evaluation of the provide evidence that applicant or their (x) Communication, dissemination, project. Describe how the center will collaborating partners have access to the and evaluation. collaborate with partners on refining defined community population, and (b) Communication and and developing the research that the participation by the defined Dissemination Activities: Applicants methodology, recruiting of research community population will be adequate should outline how they will develop a participants, and reporting and to develop, implement and evaluate the communication plan and describe the disseminating research findings. plan. communication and dissemination • Summary of the research project: To assure that applicants have this infrastructure and activities to be (i) Background capacity, applicants should at a carried out to further the program goals. (ii) Importance minimum: Applicants should have the capacity to: (iii) Relevance to the defined (i) Provide evidence of having disseminate research by making its community. identified youth interpersonal violence findings, methods, and tools available; (iv) Integration into 5 year research prevention priorities, including keep stakeholders (i.e., researchers, agenda disparities, within the defined practitioners, community members, and (v) Goals and objectives community and of having identified policymakers) abreast of the center’s (vi) Proposed timeframe for the project them in collaboration with community accomplishments; produce products (vii) Setting and context partners. that reflect research progress and (viii) Methods and measures (ii) Document experience in results, and participate in coordinated (ix) Study participants and recruitment successfully developing, conducting, activities with other ACEs and their strategy. Provide evidence that the and evaluating community mobilization collaborating partners (e.g., state/local recipient (or a collaborating partner) activities in the past five years. health departments, community groups, has access to the study population (iii) Describe how the CMP helps and youth violence prevention research and that the participation by the study fulfill the center’s mission. If the and practice organizations) to facilitate population will be adequate to test community mobilization efforts are also linkages among ACEs and national/ hypotheses. supported by non-ACE Program state/local partners to ensure National (x) Expected outcomes collaborations, identify the other Program objectives are being achieved. (xi) Communication and dissemination funders. To assure that applicants have this Data Sharing and Release: Describe (iv) Describe the center’s draft five- capacity, applicants should, at a plans for the sharing and release of data, year CMP, including the goals and minimum: if applicable (See AR–25 for additional objectives. The applicant should use the (i) Outline how a communication plan information). following template and provide will be developed that defines and

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describes how the center’s (i) Describe the center’s assets or Infrastructure; Collaborations/ communication and dissemination needs assessment (past, current, or Partnerships. activities will be integrated into the proposed) for training, technical Surveillance and Research Core: center’s activities, including the assistance, and mentoring. Explain Surveillance Projects; Core Research research agenda. collaboration with partners in the assets Projects; Seed Projects. (ii) Address how the center will work and needs assessment. Outreach and Education Core: with collaborators and other partners to (ii) Describe the center’s draft plan for Community Mobilization; extend the center’s reach; how the providing training, technical assistance, Communication and Dissemination center’s activities and research will and mentoring. This plan should Activities: Training, Technical affect youth violence prevention include: goals and objectives; partner Assistance, and Mentoring. policies impacting their community; collaboration; and how the plan reflects The RFA label available in the PHS and how other potential outcomes the mission of the center and the assets 398 (rev. 5/2001) application form must through communication and and needs assessment described above. be affixed to the bottom of the face page dissemination efforts will be identified. Describe how any lessons learned from of the application. prior training; technical assistance and (iii) Describe the methods the center IV.3. Submission Dates and Times will use to translate, communicate, and mentoring activities during the past five LOI Deadline Date: December 22, disseminate its products and other years will be applied to the proposed plan. Additionally, describe training 2004. information. Address how the center CDC requests that you send a LOI if will produce, translate and distribute facilities and resources (e.g., ability to print materials, use video and computer you intend to apply for this program. publications and materials such as Although the LOI is not required, not scientific papers, conference reports, equipment, and develop Web sites). (iii) Describe the opportunities and binding, and does not enter into the newsletters, and educational and quality of the career development and review of your subsequent application, training materials; plan proposed mentoring plan for the junior the LOI will be used to gauge the level meetings, personal interactions, and investigators in the center. Applicants of interest in this program, and to allow sharing of information with should describe the feasibility and CDC to plan the application review. collaborators for the development of potential for junior investigators to gain Application Deadline Date: February long-term partnerships; provide research experience in youth violence 10, 2005. electronic dissemination of products affecting at-risk populations. Explanation of Deadlines: and other information through websites The narrative should be no more than Applications must be received in the and any other means; and develop 100 pages (8.5″ × 11″), double-spaced, CDC Procurement and Grants Office by media releases and statements, or and printed on one side only, with one- 4 p.m. eastern time on the deadline pursue opportunities for media inch margins on all sides and date. If you send your application by the coverage. unreduced 12-point font. Appendices United States Postal Service or (iv) Describe the center’s must be hard copy documents (i.e., no commercial delivery service, you must infrastructure of resources and audiovisual materials or posters). ensure that the carrier will be able to personnel that will support the In order to facilitate the preparation guarantee delivery of the application by identified communication and and review of the application, the the closing date and time. If CDC dissemination activities. At a minimum, application components should be receives your application after closing describe the center’s ability to: organized according to the Table of due to: (1) carrier error, when the carrier disseminate community-based youth Contents listed below. The table of accepted the package with a guarantee violence prevention research in public contents below supersedes the for delivery by the closing date and health, allied disciplines and the instructions contained in the PHS 398. time, or (2) significant weather delays or constituent communities/stakeholders; • Detailed Budget for the Initial natural disasters, you will be given the translate the content of the center’s Budget for the Entire Proposed Period opportunity to submit documentation of activities for different audiences; for Each Project. the carriers guarantee. If the develop a plan that reflects the • Budget for the Entire Proposed documentation verifies a carrier community’s youth demographic and Period of Support for the Entire problem, CDC will consider the cultural profile; and access personnel Proposed Center. application as having been received by • and resources, as applicable for layout Detailed Budget Justification for the deadline. and design, web site construction, Each Proposed Project/Activity for the This announcement is the definitive photography, proofreading, and other Initial Budget Period. guide on application submission • development and production activities. Biographical Sketch-Principal address and deadline. It supersedes (c) Training, Technical Assistance Investigator/Program Director. information provided in the PHS 398 • Other Biographical Sketches. and Mentoring: Applicants should • application instructions. If your describe the center’s draft plan for Other Research Support. application is not received in the CDC • Executive Summary with Overall providing training, technical assistance, Procurement and Grants office by the and mentoring, and the infrastructure of Goals and Objectives of the Center. • Center Logic Model. deadline above, it will not be eligible for resources and personnel required to • Application Narrative: review, and will be discarded. You will support training, technical assistance, Overall Description of the Proposed be notified that you did not meet the and mentoring of practitioners, Center. submission requirements. researchers, students, community Statement on the Institutional CDC will not notify you upon receipt members, and other partners, as Commitment to the Proposed Center. of your application. If you have a applicable. Applicants should have the Performance/Accomplishments in question about the receipt of your capacity to assess, plan, implement, and Last Project Period (Current Centers). application, first contact your courier. evaluate training, technical assistance, Past Performance/Accomplishments CDC will not notify you by mail upon or mentoring activities. Applicants, at a Relevant to Proposed Center. receipt of your application, but if you minimum, should address the Administrative and Infrastructure still have any questions, contact the following: Core: Defined Community; Evaluation; PGO–TIM staff at: 770–488–2700. Before

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calling, please wait two to three days V. Application Review Information and expertise as it relates to conducting after the application deadline. This will an evaluation of the applicant’s center, V.1. Criteria allow time for applications to be (iv) articulate a five-year evaluation plan processed and logged. Applicants are required to provide for evaluating the critical components of measures of effectiveness that will the center’s logic model, including the IV.4. Intergovernmental Review of demonstrate the accomplishment of the goals and objectives, and (v) illustrate Applications objectives identified in the cooperative how the center’s evaluation plan is Executive Order 12372 does not apply agreement. Measures of effectiveness related to the national ACE Program to this program. must relate to the performance goals evaluation activities, which includes stated in the ‘‘Purpose’’ section of this annual reporting on national IV.5. Funding Restrictions announcement. Measures must be performance indicators. Restrictions, which must be taken into objective and quantitative, and must (c) Infrastructure (25 points). To what account while writing your budget, are measure the intended outcome. These extent does the applicant: (i) Provide a as follows: measures of effectiveness shall be detailed organizational chart that • Funds relating to the conduct of submitted with the application and represents the center’s activities, (ii) research will not be released until the shall be an element of evaluation. describe how the organizational appropriate assurances and Institutional The goals of CDC-supported research structure facilitate the center’s activities, Review Board approvals are in place. are to advance the understanding of (iii) describe the positions needed to If you are requesting indirect costs in biological systems, improve the control accomplish the center’s goals and your budget, you must include a copy and prevention of disease and injury, objectives, (iv) propose a staffing plan of your indirect cost rate agreement. If and enhance health. In the written with the required experience, expertise, your indirect cost rate is a provisional comments, reviewers will be asked to and percentage of effort among the rate, the agreement must be less than 12 evaluate the application in order to center’s leadership, research, judge the likelihood that the proposed months of age. evaluation, communications, training, research will have a substantial impact information management, and fiscal IV.6. Other Submission Requirements on the pursuit of these goals. administration staff to accomplish its The scientific review group will LOI Submission Address: Submit your proposed goals and objectives, (v) address and consider the following LOI by express mail, delivery service, explain how it will increase its capacity items in the determination of scientific fax or e-mail to: over time, (vi) demonstrated the merit. applicant’s commitment to the center Address for Express Mail or Delivery 1. Administrative and Infrastructure Service: NCIPC Extramural Resources (e.g., facilities, technological resources, Core (Total: 150 points) etc.)and adequate university Team, CDC, National Center for Injury (a) Defined Community (25 points). Prevention and Control, 2945 Flowers commitment to establish and maintain To what extent does the applicant an identity for the proposed center. Road, Yale Building, Room 2054, adequately define and describe the Atlanta, Georgia 30341. Is sufficient documentation of primary community that the center’s institutional endorsement of the Address for U.S. Postal Service Mail: activities serve, such as: (i) The size of proposed five-year research and NCIPC Extramural Resources Team, the defined geographic or non- community mobilization plans offered, CDC, National Center for Injury geographic community, (ii) including: (i) Letters of commitment Prevention and Control, 4770 Buford characteristics such as demographic from senior institutional officials from Hwy, NE., Mailstop K–62, Atlanta, GA make up, socioeconomic, and cultural both collaborating institutions, (ii) 30341, telephone: 770–488–4037, fax: characteristics, (iii) levels of youth letters of support that fully address and 770–488–1662, e-mail: [email protected]. violence and a description of the support the priorities and objectives of Application Submission Address: prevalent risk and protective factors, (iv) the center. Submit the original and one copy of the youth violence prevention and (d) Collaborations/Partnerships (50 your application by mail or express public health infrastructure, including points). To what extent does the delivery service to: Technical levels of organization and support for applicant: (i) Describe the center’s Information Management CE05–018, interpersonal youth violence prevention community advisory committee, CDC Procurement and Grants Office, and community health interventions, (v) particularly its initial mission, roles, 2920 Brandywine Road, Atlanta, GA community assets and history of composition, and plans for developing 30341. ‘‘community participation, (vi) existing or refining guidelines, (ii) provide At the time of submission, four health, education, community, justice letters of support or other evidence from additional copies of the application, and and other local policies related to youth these partners of active participation in four copies of all appendices must be violence prevention. How well does the this collaboration that fully address and sent to: applicant describe the center links to support the priorities and objectives of Address for Express Mail or Delivery the defined community and document the center, (iii) outline the past and Service: NCIPC Extramural Resources appropriate levels of engagement and newly established partnerships, the Team, CDC, National Center for Injury collaboration? roles of these partners, and the methods Prevention and Control, 2945 Flowers (b) Program Evaluation (50 points). To for establishing and maintaining the Road, Yale Building, Room 2054, what extent does the applicant: (i) partnerships, and (iv) articulate the Atlanta, Georgia 30341. Appropriately describe the center-level proposed activities with the identified Address for U.S. Postal Service Mail: logic model and provide a narrative partners? NCIPC Extramural Resources Team, description of components of the logic 2. Surveillance and Research Core CDC, National Center for Injury model, (ii) sufficiently describe and (Total: 200 Points) Prevention and Control, 4770 Buford justify how each component of the (a) Surveillance (50 points). To what Hwy, NE., Mailstop K–62, Atlanta, GA center’s logic model relates to or extent does the applicant: (i) Describe 30341. differentiates from the national ACE the establishment and/or enhancement Applications may not be submitted Program conceptual framework, (iii) of surveillance system(s) to be able to electronically at this time. describe relevant evaluation experiences measure the problem of youth violence

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in the chosen community, (ii) address Propose work appropriate to the center’s communication and how these efforts will lead to a better experience level of center researchers? dissemination activities? understanding of factors influencing (v) Describe a scientific environment (c) Training, Technical Assistance youth violence prevention, and (iii) conducive to the probability of success and Mentoring (50 points). To what include an appropriate translation and of the research to be conducted? extent does the applicant: (i) Describe dissemination plan for the proposed Propose studies that take advantage of and justify the center’s assets or needs surveillance activities? unique features of the scientific assessments for training, technical (b) Research (150 points). To what environment or employ useful assistance, or mentoring activities, (ii) extent does the applicant: collaborative arrangements? Provide outline a suitable training, technical (i) Describe the research project(s) evidence of adequate institutional and assistance, and mentoring plan that linkage to the center’s mission and community support? reflects the mission of the center and the priorities identified in the logic model (vi) Provide sufficient evidence assets or needs assessment described and the NCIPC Research Agenda? regarding the development and above, (iii) describe the opportunities Outline a conceptual research implementation of effective and quality of the career development framework, design, methods, and communication channels between and mentoring plan for the junior analyses that are well integrated, and researchers and community members? investigators in the center. appropriate to the aims of the center? Address plans for useful and successful Protection of Human Subjects from Propose research project(s) that address practical dissemination of project Research Risks: Does the applicant an important research objective related activities and findings within the adequately address the requirements of to youth interpersonal violence defined community? Title 45 CFR part 46 for the protection prevention and disparities in the 3. Outreach and Education Core of human subjects? This will not be defined community? Explain how this (Total: 150 Points) scored; however, an application can be (a) Community Mobilization Plan (50 research will lead to a better disapproved if the research risks are points). To what extent does the understanding of factors influencing sufficiently serious and protection applicant’s draft plan: youth violence prevention in the (i) Enhance the community’s capacity against risks is so inadequate as to make defined community? to address the problem of youth the entire application unacceptable. (ii) Articulate the significance of the violence and improve the health of the Inclusion of Women, Minorities in proposed research, and describe the community, by preventing or reducing Research: Does the applicant adequately effect of these studies on the concepts youth violence, particularly among address the CDC Policy requirements or methods that drive the youth those most affected? regarding the inclusion of women, violence prevention field? Employ novel (ii) Present clear goals, objectives and ethnic, and racial groups in the concepts, approaches or methods in activities that address the youth proposed research? (See Attachment 1, youth violence prevention research? violence problem in the defined AR–2 for more information). This Explain how the research challenges community? Address and take into includes: (1) The proposed plan for the existing paradigms or develops new account community contextual factors inclusion of both sexes and racial and methodologies or technologies? Propose (i.e. socioeconomic and cultural context, ethnic minority populations for research of sufficient originality, level of youth violence, public health appropriate representation; (2) the novelty, and innovation to make it and youth violence prevention proposed justification when highly relevant to the overall goals and infrastructure, history of community representation is limited or absent; (3) a objectives of the national ACE Program? participation and existing support for statement as to whether the design of Acknowledge potential problem areas the issue)? the study is adequate to measure and consider alternative (iii) Offer adequate evidence of center differences when warranted; and (4) a interdisciplinary approaches? Offer experience in successfully developing, statement as to whether the plans for clear evidence of significant conducting, evaluating, and publishing recruitment and outreach for study interdisciplinary interactions in the on community mobilization activities in participants include the process of conception, design, and proposed the past five years? Delineate establishing partnerships with implementation of the research? community involvement in the community(ies) and recognition of (iii) Document collaboration with the development of the CMP? mutual benefits. community, providing clear evidence of (iv) Address the development and Inclusion of Children as Participants community participation in developing review of the plan (i.e. describe external in Research Involving Human Subjects. and conducting the project? review and critique mechanisms)? The NIH maintains a policy that Demonstrate community support and (b) Communications and children (i.e., individuals under the age liaison, and evidence of interaction Dissemination (50 points). To what of 21) must be included in all human with, and participation of community extent does the applicant: (i) Address subjects research, conducted or members and community leaders in the the diversity or special needs of the supported by the NIH, unless there are development and conduct of the community or subgroups, (ii) describe scientific and ethical reasons not to research? Propose a design that communications and dissemination include them. This policy applies to all demonstrates sensitivity to cultural and activities that are integrated into the initial (Type 1) applications submitted socioeconomic factors in the center’s goals and objectives, (iii) for receipt dates after October 1, 1998. community? anticipate how these activities will have NCIPC has adopted this policy for this (iv) Demonstrate success in an effect on local policies, and other announcement. conducting, evaluating, and publishing potential outcomes, (iv) describe how All investigators proposing research previous community-based youth the proposed methods for the center’s involving human subjects should read violence prevention research in the past communication and dissemination the ‘‘NIH Policy and Guidelines’’ on the five years? Demonstrate a reasonable activities to help accomplish the inclusion of children as participants in degree of community-based center’s goals and objectives, and (v) research involving human subjects that participatory research, and being trained describe an adequate infrastructure of is available at: http://grants.nih.gov/ and well-suited to carry out this work? resources and personnel to support the grants/funding/children/children.htm.

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Budget: The reasonableness of the consultation with NCIPC senior staff, b. The relevance and balance of proposed budget and the requested and the availability of funds. proposed research relative to the NCIPC period of support in relation to the The primary review will be a peer programs and priorities. proposed research. review conducted by the IRG. All c. The significance of the proposed applications will be reviewed for activities in relation to the priorities and V.2. Review and Selection Process scientific merit in accordance with the objectives stated in ‘‘Healthy People Applications will be reviewed by the review criteria listed above. 2010,’’ the Institute of Medicine report, Procurement and Grants Office (PGO) Applications will be assigned a score ‘‘Reducing the Burden of Injury,’’ and staff for completeness, and for based on a scoring system of 100–500 the ‘‘CDC Injury Research Agenda.’’ responsiveness by the National Center points, in which the strongest d. Budgetary considerations. for Injury Prevention and Control. applications will receive a higher point Award Criteria: Criteria that will be Incomplete applications and score, and the weakest applications a used to make award decisions during applications that are non-responsive lower point score. the programmatic review include: will not advance through the review The Science and Program Review • Subcommittee (SPRS) of NCIPC’s Merit (as determined by peer review) process. Applicants will be notified that • Availability of funds their application did not meet Advisory Committee for Injury • Geographic diversity submission requirements. Prevention and Control (ACIPC) will • Consistency with research priorities Applications that are complete and conduct the secondary review. The in CDC’s Injury Research Agenda responsive to the announcement will be ACIPC Federal agency experts will be evaluated for scientific and technical invited to attend the secondary review, V.3. Anticipated Announcement and merit by an appropriate peer review and will receive modified briefing books Award Dates (i.e., abstracts, strengths and weaknesses group or charter study section convened September 1, 2005. by the National Center for Injury from summary statements, and project Prevention and Control in accordance officer’s briefing materials). ACIPC VI. Award Administration Information Federal agency experts will be with the review criteria listed above. As VI.1. Award Notices part of the initial merit review, all encouraged to participate in applications may: deliberations when applications address Successful applicants will receive a overlapping areas of research interest, so • Undergo a process in which only Notice of Grant Award (NGA) from the that unwarranted duplication in those applications deemed to have the CDC Procurement and Grants Office. federally funded research can be highest scientific merit by the review The NGA shall be the only binding, avoided and special subject area group, generally the top half of the authorizing document between the expertise can be shared. The NCIPC applications under review, will be recipient and CDC. The NGA will be Division Associate Director for Science discussed and assigned a priority score. signed by an authorized Grants (ADS) or their designees will attend the • Receive a written critique. Management Officer, and mailed to the • secondary review in a similar capacity recipient fiscal officer identified in the Receive, if deemed to have the as the ACIPC Federal agency experts to highest scientific merit, a second application. assure that research priorities of the Unsuccessful applicants will receive programmatic level review by the announcement are understood and to Science and Program Review notification of the results of the provide background regarding current application review by mail. Subcommittee (SPRS) of the Advisory research activities. Only SPRS members Committee for Injury Prevention and will vote on funding recommendations, VI.2. Administrative and National Control (ACIPC). and their recommendations will be Policy Requirements 45 CFR Part 74 and Applications which are complete and carried to the entire ACIPC for voting by Part 92 responsive may be subjected to a the ACIPC members in closed session. If preliminary evaluation (streamline For more information on the Code of any further review is needed by the Federal Regulations, see the National review) by an external peer review ACIPC, regarding the recommendations committee, the National Center for Archives and Records Administration at of the SPRS, the factors considered the following Internet address: http:// Injury Prevention and Control Initial would be the same as those considered Review Group (IRG), to determine if the www.access.gpo.gov/nara/cfr/cfr-table- by the SPRS. search.html. application is of sufficient technical and The secondary review committee’s The following additional scientific merit to warrant further responsibility is to develop funding requirements apply to this project: review by the IRG. CDC will withdraw recommendations for the NCIPC • from further consideration applications Director based on the results of the AR–1 Human Subjects judged to be noncompetitive and primary review, the relevance and Requirements. promptly notify the principal balance of proposed research relative to • AR–2 Requirements for Inclusion of investigator/program director and the the NCIPC programs and priorities, and Women and Racial and Ethnic official signing for the applicant to assure that unwarranted duplication Minorities in Research. organization. Those applications judged of federally-funded research does not • AR–9 Paperwork Reduction Act to be competitive shall be further occur. The secondary review committee Requirements. Projects that involve evaluated by a dual review process. has the latitude to recommend to the the collection of information from ten All awards will be determined by the NCIPC Director, to reach over better- or more persons and that are funded Director of the NCIPC based on priority ranked proposals in order to assure by cooperative agreements will be scores assigned to applications by the maximal impact and balance of subject to review and approval by the primary review committee IRG, proposed research. The factors to be Office of Management and Budget recommendations by the secondary considered will include: (OMB). review committee of the Science and a. The results of the primary review • AR–10 Smoke-Free Workplace Program Review Subcommittee of the including the application’s priority Requirements. Advisory Committee for Injury score as the primary factor in the • AR–11 Healthy People 2010. Prevention and Control (ACIPC), selection process. • AR–12 Lobbying Restrictions.

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• AR–13 Prohibition on Use of CDC Further detail on the requirements for the ‘‘Agency Contract’’ section of this Funds for Certain Gun Control addressing data sharing in applications announcement. Activities. for NCIPC funding may be obtained by VII. Agency Contacts • AR–21 Small, Minority, Women- contacting NCIPC program staff or by Owned Businesses. visiting the NCIPC Internet Web site at: We encourage inquiries concerning • AR–22 Research Integrity. http://www.cdc.gov/ncipc/osp/ this announcement. For general • AR–23 States and Faith-Based sharing_policy.htm. questions about this announcement, Organizations. contact: Technical Information VI.3. Reporting • AR–24 Health Insurance Portability Management Section, CDC Procurement and Accountability Act Requirements. You must provide the CDC with and Grants Office, 2920 Brandywine Additional information on AR–1 original, plus two hard copies of the Road, Atlanta, GA 30341–4146, through AR–24 can be found on the following reports: telephone: (770) 488–2700. CDC Web site at the following Internet 1. Interim progress report (PHS 2590, For questions about scientific/ address: http://www.cdc.gov/od/pgo/ OMB Number 0925–0001, rev. 5/2001) research program technical issues funding/ARs.htm. no less than 90 days before the end of contact: Thomas Vogelsonger, National the budget period. The progress report • AR–25 Release and Sharing of Data. Center for Injury Prevention and will serve as your non-competing Control, Centers for Disease Control and Starting with the December 1, 2004 continuation application, and must Prevention, 4770 Buford Highway, NE. receipt date, all ‘‘Requests for contain the following elements: MS K–02, Atlanta, GA 30341, telephone: Applications (RFA)/Program a. Current Budget Period Activities (770) 488–4823, FAX: (770) 488–1662, Announcements (PA)’’ soliciting Objectives. e-mail: [email protected]. proposals for individual research b. Current Budget Period Financial For questions about peer review projects of $500,000 or more in total Progress. (direct and indirect) costs per year issues, contact: Gwen Cattledge, Ph.D., c. New Budget Period Program Centers for Disease Control and require the applicant to include a plan Proposed Activity Objectives. describing how the final research data Prevention, National Center for Injury d. Detailed Line-Item Budget and Prevention and Control, 4770 Buford will be shared/released or explain why Justification. data sharing is not possible. Details on Hwy, NE., Mailstop K–02, Atlanta, GA e. Measures of Effectiveness. 30341, telephone: 770–488–1430, e- data sharing and release, including f. Additional Requested Information. mail: [email protected]. information on the timeliness of the 2. Financial status report, no more data and the name of the project data than 90 days after the end of the budget For financial, grants management, or steward, should be included in a brief period. budget assistance, contact: James paragraph immediately following the 3. Final financial status and final Masone, Contracts Specialist, CDC Research Plan Section of the PHS 398 performance reports, no more than 90 Procurement and Grants Office, 2920 form. References to data sharing and days after the end of the project period. Brandywine Road, Atlanta, GA 30341– release may also be appropriate in other 4. Additional requested information: 4146, telephone: 770–488–2736, FAX: sections of the application (e.g. The applicant will be responsible for 770–488–2671, e-mail: [email protected]. background and significance, or human submitting information on program VIII. Other Information subjects requirements). The content of performance. This will include, but is the data sharing and release plan will not limited to the following: providing This and other CDC funding vary, depending on the data being information on all projects (i.e., core opportunity announcements can be collected and how the investigator is projects, special interest projects, and found on the CDC Web site, Internet planning to share the data. The data other funded projects) and products address: http://www.cdc.gov. Click on sharing and release plan will not count (i.e., publications, presentations, ‘‘Funding’’ then ‘‘Grants and towards the application page limit and surveys, etc.); providing semi-annual Cooperative Agreements.’’ will not factor into the determining updates on information requested by the To locate the following attachments/ scientific merit or the priority scoring. program and provided in the appendices for this program Investigators should seek guidance from application; and collaborating with the announcement go to CDC Web site. their institutions on issues related to national ACE Program on the continued Dated: November 10, 2004. institutional policies, and local IRB development and improvement of a William P. Nichols, rules, as well as local, state and federal reporting system. Acting Director, Procurement and Grants laws and regulations, including the These reports must be mailed to the Office, Centers for Disease Control and Privacy Rule. Grants Management Specialist listed in Prevention.

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Narrative Description of the Conceptual activities, outputs, and outcomes specify the time it may take to achieve Framework for the National Academic common to all ACE’s and shows the outputs or outcomes. Centers of Excellence for Youth expected relationships among these Diagram Note: The size of the boxes in the Violence Prevention (ACE) Program components. The diagram of the diagram depends on the amount of text in The conceptual framework for the framework summarizes how the each box and does not denote the relative National Academic Centers of program is presumed to work. Although importance of a specific element. Excellence for Youth Violence the boxes of the framework are shown Inputs. The first column of the Prevention (ACE) Program was in a linear fashion, the relationships conceptual framework, inputs, refers to developed to describe the future among them are expected to be the assumptions underlying a program orientation of the program, its activities complex, interactive, and recursive over and the infrastructure that must be in and the outcomes it expects to achieve. time. place before a program can be The national framework or logic model The national framework does not implemented. The four inputs the was created through a participatory imply that one size fits all. To reflect framework captures are described process involving a diverse set of uniqueness, each ACE should create below. national, state, and local stakeholders their own logic model by tailoring the Youth Prevention Priorities. Each ACE and ACE grantees, and draws heavily national framework or logic model to is established to address youth from the Centers for Disease Control the center’s specific activities and goals. interpersonal violence prevention (CDC) Prevention Research Centers The national framework cannot show priorities and enhance knowledge of (PRC) model. The elements of the the emphasis an individual ACE may effective youth violence prevention in a framework and its linkages are place on one type of activity over defined community. Community is consistent with the Congressional another. The time required to achieve defined as a group of people who share language authorizing the establishment different outputs may vary among ACEs some or all of the following: geographic of the program, and CDC research and depends on many factors, such as boundaries; a sense of membership; policies. the type of research conducted and culture and language; common norms, This model serves as a planning other activities undertaken, the amount interests, or values; and common health mechanism for center in guiding their of resources devoted to activities such risks or conditions. [IOM 2002] [CDC/ activities during the 5-year grant period. as dissemination, and contextual ATSDR Principles of Community The framework identifies the inputs, factors. Thus, the framework does not Engagement] It refers to a population

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that has a distinct identity. It can mean implement ACE projects and activities Activities. The second and third residents of a geographic area, be that a and experience working with the columns of the conceptual framework catchement area, neighborhood, school community, and expertise for evaluating capture the activities that include: district, city, county or region within a the implementation of the ACE’s developing a research agenda; county. It can be used with a modifier activities and to assess the ACE’s developing a community mobilization or clause to describe a non- outcomes and accomplishments. The plan; conducting surveillance, research, geographically based subgrouping such Centers are mandated to create an building capacity and implementing the as, but not exclusively: a community of infrastructure that facilitates initiatives community mobilization plan. (Multi- youth violence prevention workers, a that involve researchers and sectoral and multi-disciplinary community of health professionals, or practitioners from varied disciplines, collaboration and dissemination are an ethnic or language community. The and collaboration across university inputs and outputs, respectively.) ACE program focuses its research centers. Finally, ACE capacity requires Research Agenda. An ACE is activities on the violence prevention communication and data systems that encouraged to engage stakeholders issues of high priority to the defined enable and facilitate work, and within its defined community in community and that address state or administrative capacity (e.g., financial developing an overall research plan, national youth violence prevention resources). identifying research priorities, selecting research projects, recruiting research priorities, and such gaps identified in Relationships with Center Partners. participants, refining research methods, the Research Agenda of CDC’s National Each ACE is also expected to establish developing interventions, conducting Center for Injury Prevention and Control and maintain center partnerships with research, and reporting and and those stated in Healthy People 2010. institutions such as state and local disseminating research findings. ACE Diagram Note: Two-way arrows connect health, education, justice departments, Centers are charged with establishing a the youth violence prevention priorities and other university partners, other ACEs, five-year research agenda with tied to box and the next three combined input Injury Control Research Centers (ICRCs), one or more HHS objectives, Healthy boxes. Prevention Research Centers, national People 2010, NCIPC Research Agenda, ACE Community Committee. CDC will youth violence prevention Guide to Community Prevention require each ACE to form or work with organizations, and CDC. Partnerships Services and local youth violence an existing ACE Community Committee. are intended to strengthen the ACE’s prevention research priorities. This group comprises members of the surveillance, research, training, Community Mobilization Plan. ACEs ACE’s defined community and adult mentoring, community mobilizing and are charged with the development and and youth representatives of agencies dissemination activities in its identified implementation of a five-year and organizations that serve the Center’s community. Partners can collaborate community mobilization or action plan designated community. The Community with the ACE in designing and (in collaboration with the Community Committee participates in the Center’s conducting research and other ACE Committee). Further, the development organization, research, or other projects and in disseminating research of a Community Mobilization Plan activities. Committee members typically findings, which are expected to help should be tied to the Research Agenda represent an identified group or facilitate the translation of public health with an identified relationship to one or population and participate in the research and related activities to more youth violence prevention committee in order to provide the practice and policy. priorities. perspective and knowledge of a Diagram Note: A dotted box around these Diagram Note: A two-way arrow connects designated population or group to the three inputs indicates that the ACE, its activities of the Center. the boxes for the development of the research community, and its external partners are the agenda and the development of the The inputs provided by an ACE major stakeholders; they collaborate with community mobilization plan. One-way Community Committee to the ACE each other to implement the ACE Program. arrows connect the boxes for the mobilization include guidance, advice on ACE The inputs for Community Committee, plan and the research agenda to the next set agendas and plans, expertise, contacts, Infrastructure, and Relationships with of activities. A two-way arrow connects the essential information about the Partners also have two-way arrows touching research agenda and the mobilization plan as designated community as well as each other. A two-way arrow connects the these processes should inform one another. combined boxes for these inputs with that for intangible benefits. Some ACE’s may Conduct Core Activities: the next input. One-way arrows also connect • wish to form additional advisory the three boxes to the first two program Surveillance. This core area groups, as needed, such as a policy activities. includes the gathering, analysis and board, a youth advisory board, or interpretation of surveillance data to advisory committees for individual Motivating Conditions for Developing enable the defined community with research projects. The decision to form and Maintaining Relationships. The whom the ACE is working to better these additional groups depends on the conceptual framework also recognizes measure the problem of youth violence, needs of the ACE and the community. the conditions motivating the and accurately reflect trends in the ACE Infrastructure. Before conducting development and maintenance of target community and the greater specific youth violence prevention relationships with community partners community. All Surveillance activities research, projects, and health promotion and others. These conditions may proposed should include an appropriate activities, an ACE must have the include trust and tangible or intangible translation and dissemination plan. necessary internal infrastructure. This benefits (such as access to expertise or • Research. The research conducted infrastructure includes the necessary acceptance by a community) and should be informed by local priorities, human resources capacity to recruit sharing of resources gained from the the NCIPC Research Agenda, and faculty with the necessary core partnership. These conditions may contribute to new methods of study, expertise, diversity and sensitivity. It influence a partner’s willingness to form understandings of, or ways to prevent also includes the necessary evaluation a relationship with the ACE, the nature youth interpersonal violence. In expertise as well as faculty and staff and strength of the relationship, and an addition, ACEs may conduct research who have the requisite ACE’s ability to sustain the relationship funded by other federal agencies and by multidisciplinary expertise to over time. state agencies, community-based

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organizations, and foundations. All also includes enhanced academic outcomes, or the intended effects of research is expected to be conducted infrastructure in service-learning, cumulative program activities over time. using sound research methods that student practicum opportunities. This Improved Practice and Policy. One further the field of youth interpersonal capacity combines a community’s and a expected outcome of the ACE Centers’ prevention research. All research university’s commitment, resources, and activities is the uptake of interventions proposed under the ACE program skills to respond to public health needs and improved youth interpersonal should include an appropriate and priorities. Another aspect of violence prevention practice and dissemination plan. enhanced capacity is the development policies. Surveillance, research, • Build Capacity. ACEs are also of skilled ‘‘violence preventers.’’ This capacity building, and community charged with developing a five-year term includes not only professionals— implementation activities conducted by plan to train, provide technical both developing new skills for those the ACEs are expected to be translated assistance to, or mentor health entering the field as young researchers/ into community practice or policies professionals, researchers, practitioners, practitioners and improving existing adopted by local and state health students, community members, and skills of current violence prevention departments, schools, other public others. These activities, which are workers—but also providing skills to agencies (e.g., recreation departments, expected to be developed in youth, parents, and volunteers. housing authorities), and community- collaboration with the recipients, may Community stakeholders who based organizations. Over time, these cover a range of topics, including youth collaborate with the ACE’s in interventions and policies may be violence prevention best practices, implementing research projects and disseminated beyond an ACE’s defined community building, research, and who participate in ACE-sponsored community and receive widespread use. evaluation as well as other needs training and technical assistance Reduction of Risk Factors/Increase in identified by ACE partners. ACEs may improve their skills as a result. The Protective Factors. Another expected also train and provide technical selected measurable products, or outcome of the ACE Centers’ activities assistance to community partners on outputs, of these activities and is the reduction of risk factors/increase implementing specific prevention and processes are described below. of protective factors in the community, health promotion interventions, Communication and Dissemination. a result of the uptake of improved including effective practices. violence prevention practice and • The communication and dissemination Implement the Community of research and evaluation findings are policies. Mobilization Plan. ACE’s are expected another type of output. These findings Expanded Resources and Recognition. to form, nurture and advance are typically published in peer-reviewed An ACE may be able to expand its partnerships with the community journals, books, and technical reports. resources beyond the core funding, designed to implement evidence-based They also may be presented to various research faculty, and initial strategies or promising programs. audiences at professional conferences, organizational and agency partnerships Community implementation efforts can community meetings, or other settings, that were formed when it first received include convening stakeholders— and reported to the media. Findings CDC funding. An ACE may also gain including the most affected—helping to from research conducted with a recognition within a community and the organize across different sectors, community should be shared with nation for expertise in a particular field fostering strategic alliances, and community partners and with other or area of youth interpersonal violence strengthening community bonds; ACE’s. prevention, and for its partnerships. assessing community resources; Intervention Implementation. Many mapping community assets; and Diagram Note: One set of dotted lines ACEs develop, implement and test surrounds the boxes for the two outcomes. A enabling a fuller understanding of and violence prevention strategies, programs second set surrounds the two additional response to the nature and dynamics of and interventions in a community, boxes below it (expanded resources and local violence. encouraging the implementation of recognition). These groupings show the Diagram Note: Two-way arrows connect potential relationships with other evidence-based strategies or promising components of the framework with which these four core activities to one another. One- programs. A program may rely on a way arrows connect surveillance, research, they are logically connected or which they capacity building, and community curriculum, a manual, or a particular are likely to influence or be influenced by. implementation to the three outputs prevention strategy or health promotion The outcomes flow back through motivating (intervention implementation, tool, which is packaged and made conditions and up the input column. They communication and dissemination, and available to interested organizations or also connect to youth violence prevention training and technical assistance). individuals. agendas and down the input column. A one- way feedback arrow also extends from the Outputs. The fourth column captures Training, Technical Assistance. ACE’s outcomes back to the inputs of youth outputs generated or produced as a training or technical assistance activities violence prevention priorities and motivating result of program activities. Through the can include an assessment of the skills conditions for developing and maintaining process of planning, carrying out public acquired, number of trainees and relationships. health-related youth violence recipients of technical assistance, the Contextual Conditions. The box prevention activities, and the promotion number and duration of training or across the bottom of the conceptual of collective action, it is expected that technical assistance events, and the framework is for contextual conditions, the professionals and community satisfaction of participants with the which are socioeconomic, political, and residents will gain increased skills and training or technical assistance they cultural factors external to the ACE confidence (or a greater sense of received. Program that may not be within its ‘‘efficacy’’) enhancing its capacity for Diagram Note: Together, all the output control but which may influence the prevention. Enhanced capacity includes boxes connect to a combined set of two implementation of activities and an improved ability on the part of outcome boxes through a one-way arrow. achievement of outcomes. Note that agencies and organizations to These two outcomes connect to each other by these conditions may relate to all implement and make well-reasoned two-way arrows. components of the framework. decisions about effective violence Outcomes. The last column of the Evaluation. Evaluation is a part of the prevention programs and services. It conceptual framework shows the ACE Program (noted at the top of the

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framework) that extends across all the 9. Evidence of a communication and county. It can be used with a modifier inputs, activities, outputs, and dissemination plan, developed with or clause to describe a non- outcomes, except for the ultimate input from key partners. geographically based sub-grouping such outcome. The arrow to each column 10. Evidence of producing and as, but not exclusively: A community of signifies that the ACE Program will disseminating research findings through youth violence prevention workers, a evaluate aspects of each component, peer-reviewed publications, and community of health professionals, or guided by performance monitoring and educational or technical materials. an ethnic or language community. evaluation questions. Many factors can 11. Evidence of a plan for training Community Mobilization contribute to the final outcome, and researchers, practitioners and empirical data demonstrating a causal community members. Community mobilization is a process link between proposed program 12. Extent to which center activities through which action is stimulated by a activities and improvements in and evidence-based strategies have been community itself or by others, that is community health are lacking. translated into the outcomes listed. planned, carried out, and evaluated by Therefore, the ACE Program will not 13. Extent to which researchers, a community’s individuals, groups, and evaluate the ACEs’ effect on violence- practitioners, and community members organizations on a participatory and induced death, disability and injury have been trained, mentored, or sustained basis to reduce or prevent among adolescents, but will evaluate provided technical assistance in youth youth violence, and improves health. program effect on improved practice violence prevention. [Save the Children/Health and policy, and reduction of risk 14. Evidence of new grants, contracts Communication Partnership] factors/increase in protective factors. or other resources awarded to the ACE Community Mobilization Plan (CMP) The ACE Program evaluation will Center or its partners. collect data that may include The plan is a general description of Appendix 3.—Glossary of Terms information about how inputs are being how you and your partners intend work used to shape the ACE Program, which Youth Interpersonal Violence with a particular community to mobilize activities are undertaken by the around youth violence prevention. A Youth interpersonal violence is mobilization plan defines the overall collective program, the quality of the defined as: The intentional use of activities, and the specific outcomes the goals and objectives and identifies a physical force or power, threatened or process that will help interested program is accomplishing. CDC, ACEs, actual, exerted by or against children, and other stakeholders can use communities achieve them, not to adolescents or young adults, ages 10–24, determine specific community actions evaluation findings for many purposes, which results in or has a high likelihood including modifying program activities or activities. The two overriding goals of of resulting in injury, death, community mobilization are to: 1. or enhancing and strengthening psychological harm, maldevelopment or relationships with community partners. Enhance the community’s capacity to deprivation. Youth interpersonal address the problem of youth violence; Evaluation findings also provide violence encompasses peer and information that can be shared with 2. Prevent or reduce youth violence, community violence between thereby improving the health of the external stakeholders, can help individuals or groups who may or may document the program’s value, and may community. not know each other. This form of The goal of a community mobilization provide justification for continuing or violence frequently takes place outside increasing program funding. plan must be related to local youth the home, in the streets, or in violence prevention priorities. Where Appendix 2.—List of Indicators for the institutional settings, such as schools, communities perceive a pressing youth National Academic Center of workplaces, and prisons. Youth violence prevention need, communities Excellence on Youth Violence violence also encompasses violence that themselves may define the goal. Prevention Program occurs between youth and family Alternatively, ACEs and their 1. Evidence of ACE Community members and other intimate relations. stakeholders may identify a goal based Committee participation in the The nature of violence can be physical, on an analysis of community health determination of ACE violence sexual, and psychological. (Adapted indicators (e.g., frequency and severity prevention priorities. from WHO Report on Violence and of specific health problems and 2. Level of ACE Community Health, 2002). [Adapted from WHO feasibility to address them). [Health Committee members satisfaction with Report on Violence and Health. To Communication Partnership] access the Report go to: http:// participation. Community Participation 3. Evidence of establishment of www.who.int/ _ _ partnerships and maintenance of violence injury prevention/violence/ The active involvement of the _ partnerships. world report/en/ ]. members of a community in the 4. Establishment of a Community Community planning, creation, operation, Mobilization Plan. evaluation, dissemination and oversight 5. Establishment of a Research Community is defined as a group of of an initiative or project. Agenda. people who share some or all of the Community Committee 6. Evidence of community following: geographic boundaries; a improvements in the ability to monitor sense of membership; culture and A group of individuals that represent and describe youth violence. language; common norms, interests, or groups and organizations within the 7. Extent to which the research values; and common health risks or Center’s designated community. The portfolio is contributing to new methods conditions. [IOM 2002] [CDC/ATSDR Community Committee participates in of study, understandings of, or ways to Principles of Community the Center’s organization, research, or prevent youth violence. Engagement].—It refers to a population other activities. Committee members 8. Evidence that the ACE Center is that has a distinct identity. It can mean typically represent an identified group mobilizing the community to implement residents of a geographic area, such as or population and participate in the evidence-based strategies or promising a catchment area, neighborhood, school committee in order to provide the programs. district, city, county or region within a perspective and knowledge of a

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designated population or group to the phase of the research process: defining ADDRESSES: Submit written requests for activities of the Center. the problem, setting goals, selecting single copies of this guidance to the CDC will require each ACE to form an methods, interpreting data, and Division of Drug Information (HFD– ACE Community Committee. This group recommending policy. Essential to this 240), Center for Drug Evaluation and should comprise members of the ACE’s philosophical construct is the assurance Research, Food and Drug defined community and adult and youth of quality decision making throughout Administration, 5600 Fishers Lane, representatives of agencies and the research process. In the document Rockville, MD 20857. Send one self- organizations serving that community. Building Community Partnerships in addressed adhesive label to assist that The inputs provided by an ACE Research, participatory research is office in processing your requests. Community Committee to the ACE described as the gold standard toward Submit written comments on the include guidance, advice on ACE which all federally funded research guidance to the Division of Dockets agendas and plans, expertise, contacts, should aspire. (5)(p7). [Building Management (HFA–305), Food and Drug essential information about the Community Partnerships in Research: Administration, 5630 Fishers Lane, rm. designated community as well as Recommendations and Strategies. 1061, Rockville, MD 20852. Submit intangible benefits. Some ACE’s may Executive Summary. Washington, DC: electronic comments to http:// wish to form additional advisory U.S. Dept of Health and Human www.fda.gov/dockets/ecomments. groups, as needed, such as a policy Services; April 7, 1998.] Requests and comments should be board, a youth advisory board, or [FR Doc. 04–25667 Filed 11–19–04; 8:45 am] identified with the docket number advisory committees for individual found in brackets in the heading of this BILLING CODE 4163–18–P research projects. The decision to form document. See the SUPPLEMENTARY these additional groups depends on the INFORMATION section for electronic needs of the ACE and the community. DEPARTMENT OF HEALTH AND access to the guidance document. Center Partnerships HUMAN SERVICES FOR FURTHER INFORMATION CONTACT: Each ACE is also expected to establish David J. Cummings, Center for Drug Food and Drug Administration and maintain center partnerships with Evaluation and Research (HFD–357), Food and Drug Administration, 5600 institutions such as state and local [Docket No. 2004D–0494] health, education justice departments, Fishers Lane, Rockville, MD 20857, other university partners, other ACEs, Guidance for Industry on Changes to 301–443–5187. Injury Control Research Centers (ICRCs), an Approved New Drug Application or SUPPLEMENTARY INFORMATION: Prevention Research Centers, national Abbreviated New Drug Application; I. Background youth violence prevention Specifications—Use of Enforcement organizations, and CDC. Partnerships Discretion for Compendial Changes In the Federal Register of April 8, are intended to make the ACE’s 2004 (69 FR 18728), FDA published a AGENCY: Food and Drug Administration. surveillance, research, training and final rule entitled ‘‘Supplements and mentoring, community mobilizing and ACTION: Notice. Other Changes to an Approved dissemination activities relevant to its Application.’’ In the same issue of the SUMMARY: The Food and Drug Federal Register (69 FR 18768), FDA identified community. Partners can Administration (FDA) is announcing the collaborate with the ACE in designing announced the availability of the availability of a guidance for industry guidance for industry entitled ‘‘Changes and conducting research and other ACE entitled ‘‘Changes to an Approved NDA projects and in disseminating research to an Approved NDA or ANDA’’ (the or ANDA; Specifications—Use of changes guidance). Under findings, which are expected to help Enforcement Discretion for Compendial facilitate the translation of public health § 314.70(c)(2)(iii) (21 CFR Changes.’’ This guidance informs new 314.70(c)(2)(iii)) of the final rule, the research and related activities to drug application (NDA) and abbreviated practice and policy. relaxation of an acceptance criterion or new drug application (ANDA) holders deletion of a test to comply with an Community-Based Participatory of FDA’s plan to use enforcement official compendium that is consistent Research (CBPR) discretion with regard to the regulation with FDA statutory and regulatory Scientific inquiry conducted in on changes to an approved application. requirements must be submitted as a communities in which community This regulation describes the filing CBE–30 (see section VIII.C.1.e of the members, persons affected by condition requirement that a relaxation of changes guidance). or issue under study and other key acceptance criteria or deletion of a test FDA is issuing this guidance to stakeholders in the community’s health to comply with an official compendium explain that it is using enforcement have the opportunity to be full must be reported in a changes-being- discretion with regard to participants in each phase of the work effected-in-30-days supplement (CBE– § 314.70(c)(2)(iii) to address concerns (from conception—design—conduct— 30). FDA does not intend to take raised by stakeholders. FDA plans to analysis—interpretation—conclusions— enforcement action if manufacturers clarify that some of these types of communication of results). continue to submit such changes in changes can be submitted in an annual their annual reports. The use of report, instead of a CBE–30 supplement, Definition Developed by Inter Agency enforcement discretion will give the in a revision of the guidance for Working Group for CBPR, Convened by agency time to clarify that some of these industry entitled ‘‘Changes to an NIEHS, NIH, August 2, 2002 types of postapproval changes can be Approved NDA or ANDA; Questions According to the CARE–CDC Health submitted in an annual report, rather and Answers.’’ Initiative, A Model for Global than in a CBE–30. The agency intends This guidance contains information Participatory Research, in community- to clarify this issue in an upcoming collection provisions that are subject to based participatory research, the revision to a guidance for industry. review by the Office of Management and definition of scientific rigor is DATES: Submit written or electronic Budget (OMB) under the Paperwork broadened to encompass community comments on agency guidances at any Reduction Act of 1995 (44 U.S.C. 3501– participation in decisionmaking at every time. 3520). The collection of information in

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this guidance was approved under OMB DEPARTMENT OF HEALTH AND To streamline the collection, selection Control No. 0910–0001 and 0910–0032. HUMAN SERVICES and assignment of grant reviewers to This guidance is being issued independent review committees, HRSA consistent with FDA’s good guidance Health Resources and Services will utilize a Web-based data collection practices regulation (21 CFR 10.115). Administration form to gather critical reviewer The guidance represents the agency’s information. The Grant Reviewer current thinking on these topics. It does Agency Information Collection Recruitment Form will standardize not create or confer any rights for or on Activities: Submission for OMB pertinent categories of reviewer any person and does not operate to bind Review; Comment Request information, such as areas of expertise, FDA or the public. An alternative occupations, work settings, reviewer approach may be used if such approach eriodically, the Health Resources and experience, and allow maximum use of satisfies the requirements of the Services Administration (HRSA) publi drop-down menus to simplify for the applicable statutes and regulations. tracts of information collection requests data collection process. All self- under review by the Office of II. Comments nominated reviewers will be channeled Management and Budget, in compliance to the Grant Reviewer Recruitment Interested persons may at any time with the Paperwork Reduction Act of Form. DIR anticipates a monthly volume submit to the Division of Dockets 1995 (44 U.S.C. Chapter 35). To request of approximately 100 self-nominated Management written or electronic a copy of the clearance requests responses. On a periodic basis, existing comments on the guidance (see submitted to OMB for review, call the HRSA reviewers will be notified and ADDRESSES). Submit a single copy of HRSA Reports Clearance Office on (301) directed to update their profile (via the electronic comments or two paper 443–1129. Grant Reviewer Recruitment Form). copies of any mailed comments, except The following request has been HRSA maintains a pool of that individuals may submit one paper submitted to the Office of Management approximately 5,000 individuals that copy. Comments are to be identified and Budget for review under the have previously served on HRSA with the docket number found in Paperwork Reduction Act of 1995: independent review committees. DIR brackets in the heading of this projects that approximately 3,700 document. The guidance and received Proposed Project: The Division of individuals (or 75% of existing comments may be seen in the Division Independent Review Grant Reviewer reviewers) would comply with of Dockets Management between 9 a.m. Recruitment Form—New instructions to update their profile on and 4 p.m., Monday through Friday. HRSA’s Division of Independent the Web-based Recruitment Form. III. Electronic Access Review (DIR) is responsible for carrying For existing HRSA reviewers, the Persons with access to the Internet out the independent review of all amount of time required to complete the may obtain the document at either http:/ eligible applications submitted to Recruitment Form will be abbreviated /www.fda.gov/cder/guidance/index.htm HRSA. DIR ensures that the since HRSA will fill in the Form with or http://www.fda.gov/ohrms/dockets/ independent review process is efficient, previously collected personal default.htm. effective, economical and complies with information; existing reviewers will statutes, regulations and policies. The focus only on updating changes (e.g., Dated: November 13, 2004. review of applications is performed by addresses, employer, expertise, Jeffrey Shuren, people knowledgeable in the field of occupation) to their profile. The Assistant Commissioner for Policy. endeavor for which support is requested estimate of burden for the HRSA Grant [FR Doc. 04–25748 Filed 11–19–04; 8:45 am] and is advisory to individuals in HRSA Reviewer Recruitment Form is as BILLING CODE 4160–01–S responsible for making award decisions. follows:

Number of re- Responses Total re- Minutes per Total burden Type of respondent * per respond- spondents ent sponses response hours

New reviewer ...... 1,200 1 1,200 45 900 Existing reviewer ...... 3,700 1 3,700 30 1850 Total ...... 4,900 ...... 4,900 ...... 2,750 * Includes two categories of grant reviewers: (1) new or self-nominated reviewers that have never served as a HRSA grant reviewer and (2) existing reviewers that have previously served on a HRSA independent review committee.

Written comments and Dated: November 15, 2004. DEPARTMENT OF HEALTH AND recommendations concerning the Tina M. Cheatham, HUMAN SERVICES proposed information collection should Director, Division of Policy Review and be sent within 30 days of this notice to: Coordination. Health Resources and Services John Kraemer, Human Resources and [FR Doc. 04–25751 Filed 11–19–04; 8:45 am] Administration Housing Branch, Office of Management BILLING CODE 4165–15–P and Budget, New Executive Office Cooperative Agreement for the Building, Room 10235, Washington, DC International AIDS Education and 20503. Training Center; CFDA 93.145 AGENCY: Health Resources and Services Administration, HHS. ACTION: Notice of supplemental award.

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Intended Recipient of the Award: AIDS Bureau will be unable to provide available on the Internet at http:// University of Washington, Seattle, this enhanced level of resources and dms.dot.gov under the docket number Washington. expertise to the targeted countries. USCG–2004–19665. Purpose of the Award: This notice FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: Mr. announces the program expansion Additional information on the supplement for the cooperative Gerald Miante, Assistant Executive International AIDS Education and Director of TSAC, telephone 202–267– agreement for the International AIDS Training Center may be obtained from Education and Training Center at the 0214, fax 202–267–4570, or e-mail Thurma Goldman, MD, MPH, HIV/AIDS [email protected]. University of Washington, Seattle, Bureau, HRSA, 5600 Fishers Lane, Washington, to expand and augment Parklawn Building, Room 7–05, SUPPLEMENTARY INFORMATION: Notice of capacity building under the President’s Rockville, Maryland 20857; telephone these meetings is given under the Emergency Plan for AIDS Relief (the number (301) 443–1993; fax (301) 443– Federal Advisory Committee Act, 5 President’s Emergency Plan). This is the 9645; or e-mail [email protected]. U.S.C. App. 2 (Pub. L. 92–463, 86 Stat. third budget period for this Cooperative 770, as amended). Agreement. The purpose of this funding Dated: November 10, 2004. is to support the President’s Emergency Elizabeth M. Duke, Agenda of Working Group Meetings Plan by strengthening human and Administrator. The agenda for the Towing Industry organizational capacity through [FR Doc. 04–25750 Filed 11–19–04; 8:45 am] Safety System Working Group training, technical assistance, BILLING CODE 4165–15–P tentatively includes the following items: infrastructure building, and curriculum development in the 15 focus countries (1) Identify the elements that should be included in a safety management including 12 in Africa, two in the DEPARTMENT OF HOMELAND system (SMS) requirement for towing Caribbean and Vietnam (Botswana, Coˆte SECURITY d’Ivoire, Ethiopia, Guyana, Haiti, Kenya, vessels. Mozambique, Namibia, Nigeria, Coast Guard (2) Identify a framework for Coast Rwanda, South Africa, Tanzania, Guard oversight and enforcement of a Uganda and Zambia). Further training [USCG–2004–19665] towing vessel inspection program based and technical assistance is also being Towing Safety Advisory Committee on a SMS and consider the role of third augmented through the President’s parties in such a system. Emergency Plan in other countries for AGENCY: Coast Guard, DHS. (3) Identify whether any towing vessel which bilateral agreements for similar ACTION: Notice of meeting. should be exempt from coverage under strategies have been established. The an inspection program based on a SMS. President’s Emergency Plan is intended SUMMARY: The Towing Vessel Inspection (4) Identify proposed regulations to complement other bilateral and Working Group of the Towing Safety implementing an inspection program for international support efforts, including Advisory Committee (TSAC) will meet towing vessels based on a SMS. support through the Global Fund to to discuss matters relating to the Fight AIDS, Tuberculosis, and Malaria. inspection of towing vessels and safety Procedural Amount of the Award: $8,877,718. management systems. The meetings will Project Period: Original Project Period be open to the public. The meetings are open to the public. 04/01/02–9/30/05, New Project Period: Please note that the meetings may close DATES: 04/01/02–2/28/06. The Towing Vessel Inspection early if all business is finished. At the The current budget period is being Working Group will meet on Chair’s discretion, members of the extended to February 28, 2005 (in line Wednesday, December 8, 2004 from public may make oral presentations with the intent of the five year strategy 1:30 p.m. to 4:30 p.m. and on Thursday, during the meeting. If you would like to of the President’s Emergency Plan). This December 9, 2004 from 8:30 a.m. to 2 make an oral presentation at the would also extend the project period for p.m. The meetings may close early if all meeting, please notify the Assistant the cooperative agreement from business is finished. Written or Executive Director (as provided above in electronic material and requests to make September 30, 2005, to February 28, FOR FURTHER INFORMATION CONTACT) no oral presentations should reach the 2006. later than December 3, 2004. Written or Coast Guard on or before December 3, Justification for the Exception to electronic material for distribution at 2004. Requests to have a copy of your Competition: The International AIDS the meeting should reach the Coast material distributed to each member of Education and Training Center is the Guard no later than December 3, 2004. only Health Resources and Services the Working Group should be in Administration (HRSA), HIV/AIDS electronic form and reach the Coast Information on Services for Individuals Bureau grantee providing valuable Guard on or before December 3, 2004. With Disabilities capacity building in the area of care and ADDRESSES: The Working Group will For information on facilities or treatment to the focus and bilateral meet in the 7th Floor All-Hands services for individuals with disabilities countries through training and other Conference Room (#725), National or to request special assistance at the technical assistance. The original intent Pollution Funds Center, 4200 Wilson meeting, contact Mr. Miante at the of this cooperative agreement was to Boulevard, Arlington, VA 22203. Please number listed in FOR FURTHER fulfill the gap in training for quality, bring a government-issued ID with INFORMATION CONTACT as soon as comprehensive HIV/AIDS care and photo (e.g., driver’s license). Send possible. treatment left by other U.S. Government written or electronic material and partners. The President’s Emergency requests to make oral presentations to Dated: November 15, 2004. Plan is providing the resources to Mr. Gerald Miante, Commandant (G– Joseph J. Angelo, provide the services that are needed in MSO–1), U.S. Coast Guard Director of Standards, Marine Safety, Security countries hardest hit by the AIDS Headquarters, 2100 Second Street SW., & Environmental Protection. epidemic. Without this program Washington, DC 20593–0001. This [FR Doc. 04–25759 Filed 11–19–04; 8:45 am] expansion supplement, HRSA’s HIV/ notice and related documents are BILLING CODE 4910–15–P

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DEPARTMENT OF HOMELAND employment of security screening Issued in Arlington, Virginia, on November SECURITY personnel, including physical abilities 15, 2004. and aptitude requirements. This Lisa S. Dean, Transportation Security Administration collection of information will assist the Privacy Officer. agency in ensuring that candidates [FR Doc. 04–25760 Filed 11–19–04; 8:45 am] Notice of Intent To Request Approval under employment consideration for BILLING CODE 4910–62–P From the Office of Management and Transportation Security Screener Budget (OMB) of Two Public positions meet the qualification Collections of Information; standards to successfully perform the DEPARTMENT OF HOMELAND Transportation Security Screener functions of the position. These SECURITY Medical Questionnaire; Airspace qualification requirements must be met Waiver Applications to create a national workforce of skilled Transportation Security Administration employees charged with protecting the AGENCY: Transportation Security Reports, Forms, and Record Keeping Administration (TSA), DHS. Nation’s transportation systems to ensure freedom of movement for people Requirements: Agency Information ACTION: Notice. and commerce. Collection Activity Under OMB Review; Flight Crew Self-Defense Training— SUMMARY: TSA invites public comment The information will be collected on two new information collection through a screener medical Registration and Evaluation questionnaire. TSA deems this requirements abstracted below that will AGENCY: Transportation Security be submitted to OMB in compliance collection necessary to evaluate a Administration (TSA), DHS. candidate’s aptitude and physical with the Paperwork Reduction Act. ACTION: abilities, including color perception, Notice of emergency clearance DATES: Send your comments by January request. 21, 2005. visual and aural acuity, physical coordination and motor skills to be able ADDRESSES: SUMMARY: The U.S. Department of Comments may be mailed to: (a) Distinguish on screening or delivered to Lisa Dean, Privacy Homeland Security, Transportation equipment monitors the appropriate Security Administration, has submitted Officer, Office of Transportation imaging standard; (b) distinguish each Security Policy, TSA–9, Transportation a request for emergency processing of a color displayed on every type of new public information collection to the Security Administration, 601 South screening equipment and explain what 12th Street, Arlington, VA 22202–4220. Office of Management and Budget each color signifies; (c) hear and (OMB) for review and clearance under FOR FURTHER INFORMATION CONTACT: Lisa respond to the spoken voice and to Dean at the above address or by the Paperwork Reduction Act of 1995 audible alarms in an active checkpoint (Pub. L. 104–13, 44 U.S.C. 35). This telephone (571) 227–3947 or facsimile environment; (d) perform physical (571) 227–2555. notice announces that the Information searches by efficiently and thoroughly Collection Request (ICR) abstracted SUPPLEMENTARY INFORMATION: In manipulating and handling baggage, below has been forwarded to OMB for accordance with the Paperwork containers, and other objects; (e) review and comment. The ICR describes Reduction Act of 1995, (44 U.S.C. 3501 perform pat-downs or hand-held metal the nature of the information collection et seq.), an agency may not conduct or detector searches of individuals with and its expected burden. sponsor, and a person is not required to sufficient dexterity and capacity to DATES: respond to a collection of information, thoroughly conduct the procedures over Send your comments by unless it displays a valid OMB control an individual’s entire body; and (f) December 22, 2004. A comment to OMB number. Therefore, in preparation for demonstrate a daily fitness for duty is most effective if OMB receives it submission to obtain clearance of the without impairment due to illegal drugs, within 30 days of publication. following information collections, TSA sleep deprivation, medication, or ADDRESSES: Comments may be faxed to is soliciting comments to— alcohol. The current estimated annual the Office of Information and Regulatory (1) Evaluate whether the proposed reporting burden is 11,430 hours, based Affairs, Office of Management and information requirements are necessary on an estimated 38,052 respondents. Budget, Attention: DHS–TSA Desk for the proper performance of the 2. Airspace Waiver Applications. TSA Officer, at (202) 395–5806. functions of the agency, including is requesting approval of this collection FOR FURTHER INFORMATION CONTACT: Lisa whether the information will have of information to enable it to operate its Dean, Privacy Officer, Office of practical utility; airspace waiver program. This program Transportation Security Policy, TSA–9, (2) Evaluate the accuracy of the allows aircraft operators to request Transportation Security Administration, agency’s estimate of the burden; permission to fly in restricted airspace. 601 South 12th Street, Arlington, VA (3) Enhance the quality, utility, and To obtain a waiver, the aircraft operator 22202–4220; telephone (571) 227–3947; clarity of the information to be must file a waiver request in advance of facsimile (571) 227–2555. collected; and the flight containing information about SUPPLEMENTARY INFORMATION: (4) Minimize the burden of the all passengers and crew members on collection of information on those who board the flight, so that TSA may Transportation Security Administration are to respond, including through the perform a background check on each Title: Flight Crew Self-Defense use of appropriate automated, individual. The waiver request seeks Training—Registration and Evaluation. electronic, mechanical, or other information such as the purpose of the Type of Request: Emergency technological collection techniques or flight, aircraft type and tail number, processing request of new collection. other forms of information technology. corporate information, itinerary, as well OMB Control Number: Not yet 1. Transportation Security Screener as the names, dates and places of birth, assigned. Medical Questionnaire. TSA is and social security numbers or passport Form(s): ‘‘Level 1 End-of-Course requesting the collection of this number of all passengers and crew Evaluation’’ information to comply with 49 U.S.C. members. The current estimated annual Affected Public: Flight and cabin crew 44935, which requires TSA to establish reporting burden is 48,000 hours, based on commercial passenger and cargo qualification standards for the on an estimated 24,000 respondents. flights.

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Abstract: Section 603 of Vision 100— are to respond, including through the Dated: September 24, 2004. Century of Aviation Reauthorization Act use of appropriate automated, Elliott N. Sutta, (Pub. L. 108–176) requires TSA to electronic, mechanical, or other Acting Deputy Regional Director, Denver, develop and provide a voluntary technological collection techniques or Colorado. advanced self-defense training program other forms of information technology. [FR Doc. 04–25784 Filed 11–19–04; 8:45 am] for flight and cabin crew members of air Issued in Arlington, Virginia, on November BILLING CODE 4310–55–P carriers providing scheduled passenger 4, 2004. air transportation. This collection would Lisa S. Dean, allow TSA to collect enrollment Privacy Officer. DEPARTMENT OF THE INTERIOR information from volunteer flight and [FR Doc. 04–25802 Filed 11–19–04; 8:45 am] cabin crew members who wish to Geological Survey register for self-defense classes, and BILLING CODE 4910–62–U would permit TSA to solicit voluntary Request for Public Comments on feedback on the quality of the training. Extension of Existing Information Due to an impending statutory deadline, DEPARTMENT OF THE INTERIOR Collection To Be Submitted to OMB for TSA is seeking an emergency three- Review Under the Paperwork month authorization, until February Fish and Wildlife Service Reduction Act 2005, to collect this information. The proposal for the information TSA seeks emergency approval for a Issuance of Permit for Incidental Take of Threatened Species for the collection described below will be collection of information that would submitted to the Office of Management permit flight and cabin crew members to Elizabeth Cross Roads Property, Elbert County, CO and Budget for approval under the register for self-defense classes, and provisions of the Paperwork Reduction would solicit voluntary feedback from AGENCY: Fish and Wildlife Service, Act (44 U.S.C. Chapter 35). Copies of the participants on the quality of the Interior. proposed collection of information may training. Registration information would ACTION: be obtained by contacting the Bureau’s be gathered from volunteers for Notice of Issuance of Permit for Incidental Take of Endangered Species. clearance officer at the phone number purposes of registering them for a self- listed below. Comments on the proposal defense program, confirming that they SUMMARY: On December 16, 2003, a should be made within 60 days to the are eligible for that program (i.e., that notice was published in the Federal Bureau Clearance Officer, U.S. they are an active flight or cabin crew Register (Vol. 68 No. 241 FR 70028), Geological Survey, 807 National Center, member for a commercial or cargo air that an Application had been filed with 12201 Sunrise Valley Drive, Reston, carrier), and to confirm attendance at the U.S. Fish and Wildlife Service Virginia 20192, telephone (703) 648– the self-defense classes. The information (Service) by the Elizabeth Cross Roads, 7313. that would be collected during the LLC, for a permit to incidentally take, As required by OMB regulations at 5 registration process consists of the under section 10(a)(1)(B) of the CFR 1320.8(d)(1), the U.S. Geological volunteer’s identifying information Endangered Species Act of 1973 (16 Survey solicits specific public (such as the volunteer’s name and U.S.C. 1539), as amended, Preble’s comments as to: employee number), the name of the meadow jumping mouse, Zapus 1. Whether the collection of volunteer’s employer, and contact hudsonius preblei, pursuant to the terms information is necessary for the proper information. There would be no form of the ‘‘Environmental Assessment/ performance of the functions on the used for registration because it will Habitat Conservation Plan for Issuance bureaus, including whether the occur through local community colleges of an Endangered Species Section information will have practical utility; throughout the country. Applicants will 10(a)(1)(B) Permit for the Incidental 2. The accuracy of the bureau’s register through whatever the normal Take of the Preble’s Meadow Jumping estimate of the burden of the collection registration process is for the Mouse (Zapus hudsonius preblei) for of information, including the validity of community college that is offering the the Elizabeth Cross Roads Property in the methodology and assumptions used: course in their area. Elbert County, Colorado.’’ 3. The quality, utility, and clarity of After training is completed, TSA Notice is hereby given that on the information to be collected; and would solicit written feedback from September 23, 2004, as authorized by 4. How to minimize the burden of the trainees by using a standard TSA form the provisions of the Endangered collection of information on those who (attached). Completion of this form Species Act, the Service issued a permit are to respond, including the use of would be voluntary and anonymous. (TE–079424–0) to the above named appropriate automated, electronic, Number of Respondents: 3,000. party subject to certain conditions set mechanical, or other forms of Estimated Annual Burden Hours: An forth therein. The permit was granted information technology. estimated 750 hours annually. Estimated Annual Cost Burden: $0.00. only after the Service determined that it Title: North American Amphibian TSA is soliciting comments to— was applied for in good faith, that Monitoring Program. (1) Evaluate whether the proposed granting the permit would not be to the Current OMB Approval Number: information requirement is necessary for disadvantage of the threatened species, 1028–0078. the proper performance of the functions and that it would be consistent with the Summary: The North American of the agency, including whether the purposes and policy set forth in the Amphibian Monitoring Program information will have practical utility; Endangered Species Act, as amended. (NAAMP) is a long-term, large-scale (2) Evaluate the accuracy of the Additional information on this permit anuran (frog and toad) monitoring agency’s estimate of the burden; action may be requested by contacting program to track the status and trends (3) Enhance the quality, utility, and the Colorado Field Office, 755 Parfet of eastern and central. Volunteers clarity of the information to be Street, Suite 361, Lakewood, Colorado conduct calling surveys three to four collected; and 80215, telephone (303) 275–2370, times per year, depending on the (4) Minimize the burden of the between the hours of 7 a.m. and 4:30 regional species assemblage. Volunteers collection of information on those who p.m. weekdays. listen for 5 minutes at 10 stops along the

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route. Data are submitted electronically Background identifies goals beyond the scope of the via the Internet or on hard copy. These On April 25, 2003, the president implementation plan that are being data will be used to estimate population signed the U.S. Commercial Remote addressed by other interagency groups. trends at various geographic scales and Sensing Space Policy. The fundamental Proposed Agenda assist with documenting species goal of this policy is to advance and The meeting will begin with distribution. NAAMP Web site is: http:/ protect U.S. national security and presentations to provide an update on /www.pwrc.usgs.gov/naamp/. foreign policy interests by maintaining the CRSSP civil near-term requirements- Estimated Annual Number of the nation’s leadership in remote collection process and planned Respondents: 400. sensing space activities, and by reporting capabilities, followed by Estimated Annual Burden Hours: sustaining and enhancing the U.S. discussions of how to provide 3600 hours. remote sensing industry. Doing so will meaningful requirements information also foster economic growth, contribute Affected Public: Primarily U.S. for industry planning and business to environmental stewardship, and residents. decisions. Representatives from the enable scientific and technological For Further Information Contact: To CRSSP IWG will present the goals, excellence. In support of this goal, the obtain copies of the survey, contact the accomplishments, plans and potential Bureau clearance officer, U.S. United States Government is directed to: • enhancements to the process. Geological Survey, 807 National Center, Rely to the maximum practical 12201 Sunrise Valley Drive, Reston, extent on U.S. commercial remote Meeting Access Virginia 20192, telephone (703) 648– sensing space capabilities for filling Directions to the USGS National 7313. imagery and geospatial needs for Center can be accessed at http:// military, intelligence, foreign policy, Dated: November 15, 2004. www.usgs.gov/major_sites.html. After and homeland security, and civil users; arriving at USGS follow signs to Visitors Susan Haseltine, • Focus United States Government Associate Director for Biology. Parking and proceed to the Visitors remote sensing space systems on Entrance. You will be required to show [FR Doc. 04–25746 Filed 11–19–04; 8:45 am] meeting needs that can not be valid picture identification as you enter. BILLING CODE 4310–47–M effectively, affordably, and reliably A guard will point you to the Visitors satisfied by commercial providers Center. because of economic factors, civil DEPARTMENT OF INTERIOR mission needs, national security Robert A. Lidwin, concerns, or foreign policy concerns; Chief of Staff, USGS Geography Discipline. Geological Survey • Develop a long-term, sustainable [FR Doc. 04–25745 Filed 11–19–04; 8:45 am] Civil Implementation Working Group— relationship between the United States BILLING CODE 4310–Y7–M U.S. Commercial Remote Sensing Government and the U.S. commercial Space Policy (CRSSP) remote sensing space industry; • Provide a timely and responsive DEPARTMENT OF THE INTERIOR AGENCY: U.S. Geological Survey. regulatory environment for licensing the operations and exports of commercial Bureau of Land Management ACTION: Notice of open meeting. remote sensing space systems; and • Enable U.S. industry to compete Potential for Oil Shale Development SUMMARY: Open meeting of the CRSSP successfully as a provider of remote Implementation Working Group (IWG) AGENCY: Bureau of Land Management sensing space capabilities for foreign to present and discuss progress and (BLM), Interior. governments and foreign commercial plans for assessing near-term civil ACTION: Notice of request for comments. users, while ensuring appropriate requirements for remote sensing data. measures are implemented to protect SUMMARY: The BLM seeks public input DATE/TIME OF MEETING: December 14, national security and foreign policy. on the terms to be included in leases of 2004, 9–12 a.m. The specific directives to civil small tracts for oil shale research and PLACE: Visitors Center, USGS agencies included: development within the Piceance Creek Headquarters, 12201 Sunrise Valley • Determine which needs for imagery Basin, northwestern Colorado; the Uinta Drive, Reston, VA 20192. and geospatial products and services Basin, southeastern Utah: and the Green can be reliably met by commercial FOR FURTHER INFORMATION CONTACT: River and Washakie Basins, western remote sensing space capabilities; Wyoming. Inquiries and notice of intent to attend • Communicate current and projected the meeting may be addressed to: Greg needs to the commercial remote sensing DATES: Please send your comments no Snyder, CRSSP IWG Chair, USGS space industry. later than December 22, 2004. National Center Center MS 517, Reston The policy also directs civil agencies ADDRESSES: Please hand-deliver written VA 22091, [email protected] or 703– to craft a plan for policy comments: To Nick Douglas, Suite 700, 648–5169. implementation. The plan, agreed to in 1620 L Street, NW., Washington, DC. SUPPLEMENTARY INFORMATION: December 2003, calls for shared This is also the FedEx address. Mail responsibilities among civil agencies, written comments to BLM (Attention: Purpose of Public Meeting close coordination with the National Nick Douglas), Minerals, Realty and This public meeting provides a forum Geospatial-Intelligence Agency, and the Resource Protection, Mail Stop: LS 700, for the remote sensing industry and formation of two groups; a senior 1849 C Street, NW., Washington, DC other interested participants to be steering committee (SSC) for policy 20240. Electronic Mail: You may send briefed on the progress and plans of the guidance and an interagency policy comments through the Internet to BLM CRSSP near-term requirements implementation working group (IWG) at: [email protected]. collection and evaluation process and to for operational support. The USGS FOR FURTHER INFORMATION CONTACT: Nick discuss ways to improve its administers these two groups and serves Douglas, Senior Policy Advisor, effectiveness. as the lead civil agency. The policy also Minerals, Realty and Resource

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Protection, Bureau of Land and what documentation should be oil shale contained within the Leased Lands. Management, Mail Stop: LS 700,1849 C required; In accordance with approved plans, the Street, NW., Washington, DC 20240 at (5) The level of National Lessee may utilize or dispose of all oil shale (202) 452–0374. Environmental Policy Act (NEPA) and oil shale products, together with the documentation that would be right to construct on the Leased Lands all SUPPLEMENTARY INFORMATION: The such works, buildings, plants, structures, appropriate for R&D leasing; and United States holds over 50 percent of roads, powerlines, and additional facilities as (6) The appropriate methodology for the world’s oil shale resources, which may be necessary or reasonably convenient determining fair market value for contain 2.6 trillion barrels of oil. These for the mining, extraction, processing, and conversion to a commercial lease. resources include the oil shale deposits preparation of oil shale and oil shale products for market. The Lessee has the right Oil Shale Research and Development (R&D) in the Green River formation in the to use so much of the surface of the Leased Lease western United States. The Green River Lands as may reasonably be required in the formation contains an estimated 1.5 This lease is entered into on , , to be exercise of the rights and privileges herein trillion barrels of oil, 72 percent of effective on , , (the ‘‘Effective Date’’), granted. which is on public lands administered by the United States of America (the Section 3. Lessor’s Reserved Interests in the by the BLM. In Colorado alone, the total ‘‘Lessor’’), acting through the Bureau of Land Management (hereinafter called the Leased Lands resource approaches one trillion barrels ‘‘Bureau’’), of the Department of the Interior The Lessor Reserves of oil, and the Federal Government (the ‘‘Department’’), and lllll (the (a) The right to continue existing uses of owns approximately 78 percent of the ‘‘Lessee’’), pursuant and subject to the the leased lands and the right to lease, sell, surface acreage and 82 percent of the provisions of the Mineral Leasing Act of or otherwise dispose of the surface or other shale oil in-place. The oil shale deposits February 25, 1920 as amended (30 U.S.C. mineral deposits in the lands for uses that do §§ 181–287), hereinafter called the ‘‘Act’’, in the eastern United States are not unreasonably interfere with operations of more specifically section 21 of the Act (30 estimated to contain 189 billion barrels the Lessee under this lease. of oil, but the Federal ownership share U.S.C. § 241), and to the terms, conditions, and requirements (1) of all regulations (b) The right to permit for joint or several is not known at this time. promulgated by the Secretary of the Interior use, such easements or rights-of-way, Section 21 of the Mineral Leasing Act, (the ‘‘Secretary’’) in 43 CFR Part 3160, including easements in tunnels upon, 30 U.S.C. 241, authorizes the leasing of including Onshore Oil and Gas Orders, and through, or in the Leased Lands, as may be federal lands for the development of oil 43 CFR Part 3590, including revisions thereof necessary or appropriate to the working of shale. The BLM does not have any hereafter promulgated by the Secretary (and the Leased Lands or other lands containing regulation for oil shale leasing. not inconsistent with any specific provisions mineral deposits subject to the Act, and the treatment and shipment of the products Therefore, all the essential leasing of this lease), all of which shall be, upon their effective date, incorporated in and, by thereof by or under authority of the Lessor, requirements must be included in the its lessees, or permittees, and for other public lease itself. The purpose of this notice reference, made a part of this lease. To the extent the provisions of this lease are purposes. Lessor shall condition such uses to is to solicit public comment on the inconsistent with the requirements of any prevent unnecessary or unreasonable specific provisions which BLM should regulation or order, the lease term govern. interference with rights of the Lessee. include in a 40-acre lease for oil shale Section 4. Lease Term research and development (R&D). The Section 1. Definitions intent of the leases is to further the As used in this lease: The lease is issued for a term not to exceed (a) ‘‘Authorized Officer’’ means any xxx years, (please comment on the duration development of technologies for the of R&D lease) subject to conversion to a economic production of shale oil. The employee of the Bureau of Land Management delegated the authority to perform the duty twenty-year lease under the conditions BLM seeks this information to facilitate described in the section in which the term is specified in section 23. oil shale development in furtherance of used. the President’s National Energy Policy. Section 5. Rentals: Non-Commercial (b) ‘‘Oil shale’’ means a fine-grained Production The policy outlined several sedimentary rock containing: (1) Organic recommendations to diversify and matter which was derived chiefly from The Lessee shall pay the Lessor an annual increase energy supplies, increase aquatic organisms or waxy spores or pollen rental in advance for each acre or fraction grains, which is only slightly soluble in thereof during the continuance of the lease of energy security, encourage conservation, $xxx. (Please comment on annual rental.) and ensure energy distribution. ordinary petroleum solvents, and of which a large proportion is distillable into synthetic Rental is payable annually on or before the Diversification of energy supply could petroleum, and (2) inorganic matter which anniversary date of the lease. Rentals for any be enhanced with access to and may contain other minerals. This term is lease year shall be credited by the Lessor development of the vast oil shale applicable to any argillaceous, carbonate, or against any royalty payments for that lease resources. siliceous sedimentary rock which, through year. The BLM seeks comments on the destructive distillation, will yield synthetic The failure to pay rental by the anniversary attached proposed lease form for oil petroleum. date shall be grounds for termination of the shale R&D. The BLM requests comments (c) ‘‘Leased Lands’’ means the lands lease. Should you fail to pay the full amount described as follows: on the anniversary, BLM will notify you of on: this failure and provide you with a grace (1) What terms (duration, royalty, (d) ‘‘Commercial Quantities’’ means quantities sufficient to provide a positive period of 15 days from notice to make rental, acreage, diligence, option for return after all costs of production have been payment in full. Should no payments be additional acreage) should BLM include met, including the amortized costs of capital received during the grace period, the lease in the R&D lease to provide short-term investment. shall terminate without the need for further incentives, and also encourage long- (e) ‘‘Shale oil’’ means a synthetic administrative proceedings. petroleum derived from the destructive term commercial development; Section 6. Royalties (2) The adequacy of a 40-acre lease for distillation of oil shale. a successful demonstration of oil shale (a) For the initial 5 years of the lease, the Section 2. Grant to Lessee Lessor waives the requirement for royalty on technology; The Lessee is hereby granted, subject to the any production. For the 6th through 10th (3) The methodology for conversion of terms of this lease, the exclusive right and year of the lease, the Lessee shall pay to the an R&D lease to a commercial lease; privilege to prospect for, drill, mine, extract, Lessor a royalty of $xxx (please comment on (4) The criteria to qualify a company remove, beneficiate, concentrate, process and royalty amount or percentage) per barrel of or individual to acquire an R&D lease dispose of the oil shale and the products of shale oil which is sold or removed from the

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Leased Lands, except that used for control, threatened and endangered species, statements and other documents required by production purposes or unavoidably lost. historic preservation, and land reclamation, the provisions of 43 CFR Part 3160 or 3590 (b) Lessee shall file with the proper office and orders of the authorized officer (written as appropriate. of Lessor, no later than 30 days after the or if oral, reduced to writing within ten effective date thereof, any contract or days.) Section 14. Assignment evidence of other arrangement for sale or (b) The Lessee shall avoid, or, where The Lessee may assign any interest in this disposal of production. At such times and in avoidance is impracticable, minimize, and lease with the approval of the authorized such form as Lessor may prescribe, Lessee where practicable correct, hazards to the officer, subject to the assignor retaining shall furnish detailed statements showing the public health and safety related to his liability for all obligations that accrued prior amounts and quality of all products removed operations on the Leased Lands conducted in to the assignment and the provision of bond and sold from the lease, the proceeds accordance with the approved operations by the assignee for all liabilities arising after therefrom, and the amount used for plan. the assignment. The assignor shall maintain production purposes or unavoidably lost. (c) Lessee shall carry on all operations in bond for liabilities arising in the period prior (c) Payment for royalties due under this accordance with approved methods and to the assignment unless the assignee lease shall be payable monthly on or before practices as provided in the applicable provides bond for the entire period of the the last day of the calendar month following operating regulations and approved lease. the calendar month in which the shale oil is operations plan. Activities will be conducted Section 15. Heirs and Successors in Interest processed or, if it is not processed, is sold. in a manner that minimizes adverse impacts (d) Payments and royalties under this lease to the land, air, water, cultural, biological, Each obligation of this lease shall extend shall be subject to the regulations in 30 CFR visual, and other resources, including to and be binding upon, and every benefit Part 218, Subpart E. mineral deposits not leased herein, and other shall inure to, the heirs, executors, land uses and users. administrators, successors, or assigns of the Section 7. Bonds (d) The Lessee shall comply with all respective parties hereto. (a) Prior to conducting operations on this applicable state and Federal laws. Section 16. Relinquishment of lease lease, the Lessee shall provide a bond in the amount determined by the authorized officer, Section 10. Water Rights The Lessee may relinquish in writing at conditioned upon compliance with all terms All water rights developed by the Lessee any time all rights under this lease, or any and conditions of the lease and the plan of through operations on the Leased Lands shall portion thereof. Upon Lessor’s acceptance of operations. This bond shall be of a type immediately become the property of the the relinquishment, Lessee shall be relieved authorized by 43 CFR 3104.1 and must be Lessor. As long as the lease continues, the of all future obligations under the lease or the sufficient to cover all costs associated with Lessee shall have the right to use those water relinquished portion thereof, whichever is reclamation and abandonment activities. The rights free of charge for activities under the applicable. The Lessee shall promptly pay all authorized officer may adjust the required lease. royalties due and reclaim the relinquished bond amount as he determines necessary to acreage in accordance with the plan of assure full compliance for the operations Section 11. Development by In Situ Methods operations. Where in situ methods are used for the conducted under this lease. Section 17. Remedies in Case of Default (b) Upon request of the Lessee, the bond production of shale oil, the Lessee shall not may be released as to all or any portion of place any entry, well, or opening for such If the Lessee fails to comply with the Leased Lands affected by exploration or operations within 500 feet of the boundary applicable laws, regulations, or the terms, mining operations, when the Lessor has line of the Leased Lands without the conditions, and stipulations of this lease and determined that the Lessee has successfully permission of, or unless directed by the the noncompliance continues for a period of met the reclamation requirements of the Authorized Officer, nor shall induced 30 days after service of notice thereof, this approved development plan and that fracturing extend to within 100 feet from that lease shall be subject to cancellation. The operations have been carried out and boundary line. Lessor may (1) Suspend operations until the completed with respect to these lands in required action is taken to correct Section 12. Inspection accordance with the approved plan. noncompliance, or (2) institute appropriate The Lessee shall permit any duly proceedings in a court of competent Section 8. Plan of Operations authorized officer or representative of the jurisdiction for the forfeiture and (a) Prior to conducting operations on the Department at any reasonable time: cancellation of this lease as provided in lease, including exploration, the Lessee shall (a) to inspect the Leased Lands and all Section 31 of the Act (30 U.S.C. 188) and for submit a plan of operations for review and surface and underground improvements, forfeiture of any applicable bond. If the approval by the authorized officer. This plan works, machinery, and equipment, and all Lessee fails to take prompt and necessary shall be submitted in accordance with the books and records pertaining to operations steps to (a) prevent loss or damage to the requirements of 43 CFR 3160 or 43 CFR 3590, and surveys or investigations under this mine, property, or premises, (b) prevent depending on the nature of the proposed lease; and danger to the employees, or (c) avoid, activity. The authorized officer shall make (b) to copy and make extracts from any minimize or, repair damage to the the final determinations as to which books and records pertaining to operations environment, the Lessor may enter on the regulations govern the proposed activity and under this lease. premises and take such measures as he may notify the Lessee of any additional deem necessary to prevent, or correct the Section 13. Reports, Maps, etc. requirements. The authorized officer may damaging, dangerous, or unsafe condition of condition the approval on reasonable (a) The Lessee shall submit to the Lessor the mine or any other facilities upon the modifications of the plan to assure protection in such form as the latter may prescribe, not Leased Lands. Those measures shall be at the of the environment. more than 60 days after the end of each expense of the lessee. (b) After plan approval, the Lessee must quarter of the Lease Year, a report covering that quarter which shall show the amount Section 18. Delivery of Premises in Case of obtain the written approval of the authorized Forfeiture officer for any change in the plan approved produced from the Lease by each method of under subsection (a). production used during the quarter, the (a) At such time as all or portions of this (c) The Lessee shall file annual progress character and quality thereof, the amount of lease are returned to Lessor, the Lessee shall reports describing the operations conducted products and by-products disposed of and deliver to the Lessor the land leased, wells, under the plan of operations. price received therefore, and the amount in underground support structures, and such storage or held for sale. This report shall be other supports and structures necessary for Section 9. Operations on the Lease Lands certified by an agent having personal the preservation of the mine workings on the (a) The Lessee shall conduct all operations knowledge of the facts who has been leased premises or deposits and place all under this lease in compliance with all designated by the Lessee for that purpose. workings and wells in condition for applicable Federal, State and local statutes, (b) The Lessee shall prepare and furnish at suspension or abandonment. Within 180 regulations, and standards including those such times and in such form as the Lessor days thereof, Lessee shall remove from the pertaining to water quality, air quality, noise may prescribe, maps, photographs, reports, premises all other structures, machinery,

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equipment, tools, and materials as required claims arising from or connected with DEPARTMENT OF THE INTERIOR by the Authorized Officer. Any such Lessee’s activities and operations under this structures remaining on the Leased Lands lease. Minerals Management Service beyond the 180 days, or approved extension (c) In any case where liability without fault thereof, shall become the property of the is imposed on the Lessee pursuant to this Agency Information Collection Lessor. Lessee shall either remove all such Activities: Submitted for Office of property or shall continue to be liable for the section, and the damages involved were cost of removal and disposal in the amount caused by the action of a third party, the Management and Budget (OMB) actually incurred by the Lessor. rules of subrogation shall apply in Review; Comment Request (b) Lessee shall reclaim all lands which accordance with the law of the jurisdiction AGENCY: Minerals Management Service have been disturbed and dispose of all debris where the damage occurred. or solid waste in an approved manner in (MMS), Interior. accordance with the schedule established in Section 21. Appeals ACTION: Notice of extension of an the plan of operations and maintain bond The Lessee shall have the right to appeal information collection (1010–0112). coverage until such reclamation is complete. orders or decisions of the BLM under 43 CFR SUMMARY: To comply with the Section 19. Protection of Proprietary Subpart 3165. Information Paperwork Reduction Act of 1995 Section 22. Special Stipulations (PRA), we are notifying the public that (a) This lease, and any activities we have submitted to OMB an thereunder, shall not be construed to grant a The special stipulations that are attached license, permit or other right of use or to and made a part of this lease are imposed information collection request (ICR) to ownership to the Lessor, or any other person, upon the Lessee, and the Lessee’s employees renew approval of the paperwork of the patented processes, trade secrets, or and agents. The failure or refusal to comply requirements in Form MMS–131, other confidential or privileged technical with these stipulations shall be deemed a Performance Measures Data. This notice information (hereafter in this section called failure of the Lessee to comply with the terms also provides the public a second ‘‘technical processes’’) of the Lessee or any of the lease. The special stipulations may be opportunity to comment on the other party whose technical processes are revised or amended, in writing, by mutual paperwork burden of these regulatory embodied in improvements on the Leased consent following appropriate notice to the requirements. Lands or used in connection with the lease. public. (b) Notwithstanding any other provision of DATES: Submit written comments by this lease, the Lessor agrees that any Section 23. Conversion Rights December 22, 2004. technical processes obtained from the Lessee ADDRESSES: You may submit comments which are designated by the Lessee as Upon production of commercial quantities of shale oil from the lease, the lease may be either by fax (202) 395–6566 or e-mail confidential shall: (1) Not be disclosed to _ persons other than employees of the Federal converted to a commercial lease containing (OIRA [email protected]) directly Government having a need for such up to a total of 5,120 acres, as allowed under to the Office of Information and disclosures and (2) not be copied or the Mineral Leasing Act (30 U.S.C. Section Regulatory Affairs, OMB, Attention: reproduced in any manner. The Lessor 241) upon payment of fair market value for Desk Officer for the Department of the further agrees this material may not be used the additional acreage and the completion of Interior (1010–0112). Mail or hand carry in any manner that will violate their appropriate NEPA analysis. This commercial a copy of your comments to the proprietary nature. lease may be issued for a term of 20 Years Department of the Interior; Minerals (c) Prior to any disclosure pursuant to a and so long thereafter as shale oil is Management Service; Attention: Rules Freedom of Information Act request, the Bureau will notify the submitter of the produced from the Leased Lands in Processing Team; Mail Stop 4024; 381 specific information which it has initially commercial quantities, and contain terms Elden Street; Herndon, Virginia 20170– determined to release and give it thirty (30) consistent with regulations to be developed 4817. Interested parties may submit a days to provide a justification for the by the Secretary pursuant to section 21 of the copy of their comments on-line to MMS, nondisclosure of the information under Mineral Leasing Act. Such commercial lease the address is: https:// exemption 4 or other relevant exemptions. shall be subject to the readjustment of lease ocsconnect.mms.gov. From the Public Your justification should address in detail, terms at the end of the 20th lease year and Connect ‘‘Welcome’’ screen, you will be pursuant to the procedures in 43 CFR 2.23, each 20 year period thereafter, and subject to able to either search for Information whether the information payment to the Lessor of a rental of 50 cents (1) Was submitted voluntarily and falls in Collection 1010–0112 or select it from per acre or fraction thereof and a royalty of a category of information that the submitter the ‘‘Projects Open For Comment’’ does not customarily release to the public, or xxx% of the gross value (provide comment of menu. the percentage of royalty for commercial (2) If the information was required to be FOR FURTHER INFORMATION CONTACT: submitted, how substantial competitive or production) of the shale oil which is removed other business harm would likely result from or sold by the Lessee, at the First Point of Cheryl Blundon, Rules Processing release. sale. Team, (703) 787–1600. You may also (c) If after reviewing the information you contact Cheryl Blundon to obtain a submit, the bureau decides to release the Section 24. Reimbursable Costs copy, at no cost, of the form that information over your objections, it will In applying for required approvals, the involves the subject collection of inform you that it intends to release the lessee under the oil shale research and information. information 10 workdays after receipt of the development (R & D) lease shall be subject to notice by the submitter. SUPPLEMENTARY INFORMATION: the obligation to reimburse the BLM as if the Title: Form MMS–131, Performance Section 20. Lessee’s Liability to the Lessor requirements of subpart 2808 of Part 43 of the Measures Data. (a) The Lessee shall be liable to the United Code of Federal Regulations (43 CFR Subpart OMB Control Number: 1010–0112. States for any damage suffered by the United 2808) were applicable. Abstract: The Outer Continental Shelf States in any way arising from or connected Dated: September 30, 2004. (OCS) Lands Act (43 U.S.C. 1331 et with Lessee’s activities and operations Thomas P. Lonnie, seq.), as amended, requires the Secretary conducted pursuant to this lease, except of the Interior to preserve, protect, and where damage is caused by employees of the Assistant Director, Minerals Realty, and United States acting within the scope of their Resource Protection. develop OCS oil, gas, and sulphur resources; make such resources authority. [FR Doc. 04–25761 Filed 11–19–04; 8:45 am] (b) The Lessee shall indemnify and hold available to meet the Nation’s energy harmless the United States from any and all BILLING CODE 4310–AG–P needs as rapidly as possible; balance

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orderly energy resource development cost containment. This information also To comply with the public with protection of the human, marine, provides offshore operators and consultation process, on June 22, 2004, and coastal environments; ensure the organizations with a credible data we published a Federal Register notice public a fair and equitable return on the source to demonstrate to those outside (69 FR 34690) announcing that we resources of the OCS; and preserve and the industry how well the industry and would submit this ICR to OMB for maintain free enterprise competition. individual companies are doing. approval. The notice provided the These responsibilities are among those No questions of a ‘‘sensitive’’ nature required 60-day comment period. In delegated to MMS. MMS generally are asked, and the collection of addition, § 250.199 provides the OMB issues regulations to ensure that information involves no proprietary control numbers for the information operations in the OCS will meet information. We intend to release data collection requirements imposed by the statutory requirements; provide for collected on Form MMS–131 only in a 30 CFR part 250 regulations and forms; safety and protect the environment; and summary format that is not company- result in diligent exploration, specifies that the public may comment specific. We will protect the information at any time on these collections of development, and production of OCS according to the Freedom of Information information; and provides the address to leases. Act (5 U.S.C. 552) and its implementing which they should send comments. This In 1991 MMS began promoting, on a regulations (43 CFR 2). information is also contained in the voluntary basis, the implementation of a Frequency: The frequency is annual, comprehensive Safety and with responses due during the 1st PRA statement on Form MMS–131. We Environmental Management Program quarter of the calendar year. have received no comments in response (SEMP) for the offshore oil and gas Estimated Number and Description of to these efforts. industry as a complement to current Respondents: Approximately 100 If you wish to comment in response regulatory efforts to protect people and Federal OCS oil and gas or sulphur to this notice, send your comments the environment during OCS oil and gas lessees and we expect a 63 percent directly to the offices listed under the exploration and production activities. response rate. ADDRESSES section of this notice. The From the beginning, MMS, the industry Estimated Annual Reporting and OMB has up to 60 days to approve or as a whole, and individual companies Recordkeeping ‘‘Hour’’ Burden: We disapprove the information collection realized that at some point they would estimate the public reporting burden want to know the effect of SEMP on but may respond after 30 days. averages 8 hours per response. This safety and environmental management Therefore, to ensure maximum includes the time for reviewing of the OCS. The natural consequence of consideration, OMB should receive instructions, gathering and maintaining this interest was the establishment of public comments by December 22, 2004. data, and completing and reviewing the performance measures. We are information. The total annual hour Public Comment Policy: Our practice requesting OMB approval for a routine burden is estimated to be 504 hours. is to make comments, including names renewal of the Form MMS–131, Estimated Annual Reporting and and addresses of respondents, available Performance Measures Data. There are a for public review during regular few editorial changes, but no changes to Recordkeeping ‘‘Non-Hour Cost’’ Burden: We have identified no ‘‘non- business hours. Individual respondents the data elements. may request that we withhold their The responses to this collection of hour cost’’ burden associated with Form home address from the record, which information are voluntary, although we MMS–131. we will honor to the extent allowable by consider the information to be critical Public Disclosure Statement: The PRA for assessing the effects of the OCS (44 U.S.C. 3501, et seq.) provides that an law. There may be circumstances in Safety and Environmental Management agency may not conduct or sponsor a which we would withhold from the Program. We can better focus our collection of information unless it record a respondent’s identity, as regulatory and research programs on displays a currently valid OMB control allowable by the law. If you wish us to areas where the performance measures number. Until OMB approves a withhold your name and/or address, indicate that operators are having collection of information, you are not you must state this prominently at the difficulty meeting MMS expectations. obligated to respond. beginning of your comment. However, We are more effective in leveraging Comments: Section 3506(c)(2)(A) of we will not consider anonymous resources by redirecting research efforts, the PRA (44 U.S.C. 3501, et seq.) comments. We will make all promoting appropriate regulatory requires each agency ‘‘* * * to provide submissions from organizations or initiatives, and shifting inspection notice * * * and otherwise consult businesses, and from individuals program emphasis. The performance with members of the public and affected identifying themselves as measures give us valuable quantitative agencies concerning each proposed representatives or officials of information to use in judging the collection of information * * *’’ organizations or businesses, available reasonableness of company requests for Agencies must specifically solicit for public inspection in their entirety. alternative compliance or departures comments to: (a) Evaluate whether the under 30 CFR 250.141 and 250.142. We proposed collection of information is MMS Information Collection also use the information collected to necessary for the agency to perform its Clearance Officer: Arlene Bajusz, (202) work with industry representatives to duties, including whether the 208–7744. identify and request ‘‘pacesetter’’ information is useful; (b) evaluate the Dated: August 27, 2004. companies make presentations at accuracy of the agency’s estimate of the E.P. Danenberger, periodic workshops. burden of the proposed collection of Knowing how the offshore operators information; (c) enhance the quality, Chief, Engineering and Operations Division. as a group are doing, and where their usefulness, and clarity of the [FR Doc. 04–25879 Filed 11–19–04; 8:45 am] own company ranks, provides company information to be collected; and (d) BILLING CODE 4310–MR–P management with information to focus minimize the burden on the their continuous improvement efforts. respondents, including the use of This leads to more cost-effective automated collection techniques or prevention actions and, therefore, better other forms of information technology.

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DEPARTMENT OF JUSTICE the recovery of antitrust plaintiffs to methods and evaluation procedures actual damages under specified through research committees composed Antitrust Division circumstances. of volunteers from the following sectors: Pursuant to section 6(b) of the Act, the primary textile industry; fiber and yarn Notice Pursuant to the National name and principal place of business of suppliers; chemical and dyes suppliers; Cooperative Research and Product Act the standards development organization machinery and instrument suppliers; of 1993—Actuarial Standards Board is: American Association for retail, government, and independent Notice is hereby given that, on Accreditation of Ambulatory Surgery testing laboratories; and academicians. September 20, 2004, pursuant to section Facilities, Gurnee, IL. The nature and Methods are grouped into the following 6(a) of the National Cooperative scope of AAAASF’s standards categories: biological properties; Research and Production Act of 1993, development activities are: the colorfastness; dyeing properties; 15 U.S.C. 4301 et seq. (‘‘the Act’’), development of standards by which identification and analysis; and physical Actuarial Standards Board (‘‘ASB’’) has single-specialty and multi-specialty out- properties. AATCC test methods do not filed written notifications patient surgery facilities are accredited. set pass/fail criteria or standards for simultaneously with the Attorney The standards for accreditation of such performance. They provide a standard General and the Federal Trade surgery facilities are developed means for testing, often with an Commission disclosing (1) the name and continually revised by AAAASF’s evaluation scale. committee of medical professionals. principal place of business of the Dorothy B. Fountain, standards development organization Dorothy B. Fountain, Deputy Director of Operations, Antitrust and (2) the nature and scope of its Deputy Director of Operations, Antitrust Division. standards development activities. The Division. [FR Doc. 04–25850 Filed 11–19–04; 8:45 am] notifications were filed for the purpose [FR Doc. 04–25837 Filed 11–19–04; 8:45 am] BILLING CODE 4410–11–M of invoking the Act’s provisions limiting BILLING CODE 4410–11–M the recovery of antitrust plaintiffs to actual damages under specified DEPARTMENT OF JUSTICE circumstances. DEPARTMENT OF JUSTICE Pursuant to section 6(b) of the Act, the Antitrust Division name and principal place of business of Antitrust Division the standards development organization Notice Pursuant to the National is: Actuarial Standards Board, Notice Pursuant to the National Cooperative Research and Production Washington, DC. The nature and scope Cooperative Research and Production Act of 1993—American College of of ASB’s standards development Act of 1993—American Association of Osteopathic Emergency Physicians activities are: Development of technical Textile Chemists and Colorists Notice is hereby given that, on standards of practice for actuaries Notice is hereby given that, on September 17, 2004, pursuant to section practicing in the United States. September 13, 2004, pursuant to section 6(a) of the National Cooperative Dorothy B. Fountain, 6(a) of the National Cooperative Research and Production Act of 1993, Deputy Director of Operations, Antitrust Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), the Division. 15 U.S.C. 4301 et seq. (‘‘the Act’’), American College of Osteopathic [FR Doc. 04–25865 Filed 11–19–04; 8:45 am] American Association of Textile Emergency Physicians (‘‘ACOEP’’) has BILLING CODE 4410–11–M Chemists and Colorists (‘‘AATCC’’) has filed written notifications filed written notifications simultaneously with the Attorney simultaneously with the Attorney General and the Federal Trade DEPARTMENT OF JUSTICE General and the Federal Trade Commission disclosing (1) the name and Commission disclosing (1) the name and principal place of business of the Antitrust Division principal place of business of the standards development organization standards development organization and (2) the nature and scope of its Notice Pursuant to the National and (2) the nature and scope of its standards development activities. The Cooperative Research and Production standards development activities. The notifications were filed for the purpose Act of 1993—American Association for notifications were filed for the purpose of invoking the Act’s provisions limiting Accreditation of Ambulatory Surgery of invoking the Act’s provisions limiting the recovery of antitrust plaintiffs to Facilities the recovery of antitrust plaintiffs to actual damages under specified Notice is hereby given that, on actual damages under specified circumstances. September 14, 2004, pursuant to section circumstances. Pursuant to section 6(b) of the Act, the 6(a) of the National Cooperative Pursuant to section 6(b) of the Act, the name and principal place of business of Research and Production Act of 1993, name and principal place of business of the standards development organization 15 U.S.C. 4301 et seq. (‘‘the Act’’), the the standards development organization is: American College of Osteopathic American Association for Accreditation is: American Association of Textile Emergency Physicians, Chicago, IL. The of Ambulatory Surgery Facilities Chemists and Colorists, Research nature and scope of ACOEP’s standards (‘‘AAAASF’’) has filed written Triangle Park, NC. The nature and scope development activities are: To develop, notifications simultaneously with the of AATCC’s standards development plan, establish, coordinate and publish Attorney General and the Federal Trade activities are: to increase knowledge of voluntary consensus standards Commission disclosing (1) the name and the application of dyes and chemicals in applicable to the fields of emergency principal place of business of the the textile industry; encouragement of medicine, emergency medical services, standards development organization research on chemical processes and and toxicology. Specifically, ACOEP and (2) the nature and scope of its materials of important interest to the develops, plans, establishes, standards development activities. The textile industry; and establishment of coordinates, and publishes voluntary notifications were filed for the purpose channels for information exchange consensus standards in the form of basic of invoking the Act’s provisions limiting among members. AATCC develops test standards for residency training in

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emergency medicine, combined family characteristics of computer software for the recovery of antitrust plaintiffs to practice/emergency medicine, and aerospace use; handling, storage, and actual damages under specified emergency medical services; and for use of hydrogen in gaseous liquid and circumstances. subspecialty residency training in slush form; handling, storage and use of Pursuant to section 6(b) of the Act, the toxicology. ACOEP also evaluates liquid propellants; methods for name and principal place of business of osteopathic residency training and mitigating the generation of orbital the standards development organization fellowship programs for conformance debris including debris flux models and is: American Society of Baking, Sonoma, with the standards. Through its vocabulary; the architecture and CA. The nature and scope of ASB’s standards development activities, interfaces necessary for effective standards development activities are: As ACOEP seeks to ensure the highest spacecraft servicing; performance Secretariat for the American National quality of training and education in parameters related to the use of Standard for Bakery Equipment Safety osteopathic emergency medicine. automation and robotics in space and Sanitation Requirements, ASB ACOEP’s standards development missions with emphasis on interfaces, administers the standards that apply to activities are ongoing in nature, and reliability, and life cycle design; the design, construction, installation, existing standards may be updated and/ vocabulary, interfaces, safety practices, safe operation and maintenance of or amended from time to time. mission profiles, and other system bakery machinery and equipment. The design aids which will promote space purpose of the standards is to provide Dorothy B. Fountain, transportation; basic aerospace design reasonable safety for bakery workers; Deputy Director of Operations, Antitrust principles; the test and evaluation of and they are intended as a guide to Division. aerospace equipment in ground-based Federal, State and municipal authorities [FR Doc. 04–25840 Filed 11–19–04; 8:45 am] facilities; methods for the systematic in drafting regulations; as voluntary BILLING CODE 4410–11–M development of reliable systems, application; and as a standard reference including acquisition management for safety requirements for the use of issues, methods for planning, bakery machinery and for equipment DEPARTMENT OF JUSTICE implementing, and verifying a manufacturers and concerns employing Antitrust Division Performance-based Reliability and such machinery. The Baking Equipment Maintainability (R&M) Program; support Safety and Sanitation Standards are on Notice Pursuant to the National design of aerospace structures, file with the American National Cooperative Research and Production including future requirements for loads, Standards Institute, Inc., 11 West 42nd Act of 1993—American Institute of materials, processes, configurations, life Street, New York, NY. Aeronautics and Astronautics, Inc. cycles, and tests. Additional information may be Dorothy B. Fountain, Notice is hereby given that, on obtained from David J. Quackenbush, Deputy Director of Operations, Antitrust September 21, 2004, pursuant to section Treasurer and Secretary of the American Division. 6(a) of the National Cooperative Institute of Aeronautics and [FR Doc. 04–25854 Filed 11–19–04; 8:45 am] Research and Production Act of 1993, Astronautics, Inc., e-mail BILLING CODE 4410–11–M 15 U.S.C. 4301 et seq. (‘‘the Act’’), [email protected]. American Institute of Aeronautics and Astronautics, Inc. (‘‘AIAA’’) has filed Dorothy B. Fountain, DEPARTMENT OF JUSTICE written notifications simultaneously Deputy Director of Operations, Antitrust with the Attorney General and the Division. Antitrust Division [FR Doc. 04–25856 Filed 11–19–04; 8:45 am] Federal Trade Commission disclosing Notice Pursuant to the National (1) the name and principal place of BILLING CODE 4410–11–M Cooperative Research and Production business of the standards development Act of 1993—Association for organization and (2) the nature and Information and Image Management scope of its standards development DEPARTMENT OF JUSTICE activities. The notifications were filed Notice is hereby given that, on for the purpose of invoking the Act’s Antitrust Division September 15, 2004, pursuant to section provisions limiting the recovery of Notice Pursuant to the National 6(a) of the National Cooperative antitrust plaintiffs to actual damages Cooperative Research and Production Research and Production Act of 1993, under specified circumstances. Act of 1993—American Society of 15 U.S.C. 4301 et seq. (‘‘the Act’’), Pursuant to section 6(b) of the Act, the Baking Association for Information and Image name and principal place of business of Management (‘‘AIIM’’) has filed written the standards development organization Notice is hereby given that, on notifications simultaneously with the is: American Institute of Aeronautics September 22, 2004, pursuant to section Attorney General and the Federal Trade and Astronautics, Inc., Reston, VA. The 6(a) of the National Cooperative Commission disclosing (1) the name and nature and scope of AIAA’s standards Research and Production Act of 1993, principal place of business of the development activities are: The 15 U.S.C. 4301 et seq. (‘‘the Act’’), standards development organization development, maintenance, and American Society of Baking (‘‘ASB’’) and (2) the nature and scope of its publishing of standards relating to has filed written notifications standards development activities. The aerodynamic decelerators; the motion of simultaneously with the Attorney notifications were filed for the purpose artificial bodies in space; atmospheric General and the Federal Trade of invoking the Act’s provisions limiting and space environments with emphasis Commission disclosing (1) the name and the recovery of antitrust plaintiffs to on scientific models; computational principal place of business of the actual damages under specified fluid dynamics applicable to standards development organization circumstances. aeronautics and astronautics; the and (2) the nature and scope of its Pursuant to section 6(b) of the Act, the requirements for humans in standards development activities. The name and principal place of business of development and operation of aerospace notifications were filed for the purpose the standards development organization systems; application for specific of invoking the Act’s provisions limiting is: Association for Information and

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Image Management, Silver Spring, MD. operation, inspection, maintenance, Association, Inc. (‘‘BHMA’’) has filed The nature and scope of AIIM’s installation, and service. written notifications simultaneously with the Attorney General and the standards development activities are: Dorothy B. Fountain, Standardization of terminology, Federal Trade Commission disclosing Deputy Director of Operations, Antitrust definitions, sizes, formats, quality, (1) the name and principal place of Division. business of the standards development methods of measurement, apparatuses [FR Doc. 04–25848 Filed 11–19–04; 8:45 am] and procedures for the production, use organization and (2) the nature and BILLING CODE 4410–11–M and storage, and retrieval of information scope of its standards development images and related source data. activities. The notifications were filed Standards, recommended practices, and for the purpose of invoking the Act’s DEPARTMENT OF JUSTICE provisions limiting the recovery of technical reports prepared in Antitrust Division antitrust plaintiffs to actual damages accordance with AIIM’s policies and under specified circumstances. procedures are intended to have broad Pursuant to section 6(b) of the Act, the national acceptance, as well as provide Notice Pursuant to the National Cooperative Research and Production name and principal place of business of the basis upon which to achieve Act of 1993—Automotive Lift Institute the standards development organization international accord in the development is: Builders Hardware Manufacturers of ISO standards. Notice is hereby given that, on Association, Inc., New York, NY. The September 20, 2004, pursuant to section nature and scope of BHMA’s standards Dorothy B. Fountain, 6(a) of the National Cooperative development activities are: Developing Deputy Director of Operations, Antitrust Research and Production Act of 1993, and maintaining the ANSI/BHMA A156 Division. 15 U.S.C. 4301 et seq. (‘‘the Act’’), series of standards covering builders [FR Doc. 04–25844 Filed 11–19–04; 8:45 am] Automotive Life Institute (‘‘ALI’’) has hardware products including BILLING CODE 4410–11–M filed written notifications architectural door trim, auxiliary simultaneously with the Attorney hardware, cabinet hardware, door General and the Federal Trade controls, exit devices, hinges, locking DEPARTMENT OF JUSTICE Commission disclosing (1) the name and devices, power operated doors, and principal place of business of the sliding and folding door hardware. Antitrust Division standards development organization and (2) the nature and scope of its Dorothy B. Fountain, Notice Pursuant to the National standards development activities. The Deputy Director of Operations, Antitrust Cooperative Research and Production notifications were filed for the purpose Division. Act of 1993—Automotive Lift of invoking the Act’s provisions limiting [FR Doc. 04–25838 Filed 11–19–04; 8:45 am] Institute—Certification Program the recovery of antitrust plaintiffs to BILLING CODE 4410–11–M actual damages under specified Notice is hereby given that, on circumstances. October 29, 2004, pursuant to section Pursuant to section 6(b) of the Act, the DEPARTMENT OF JUSTICE 6(a) of the National Cooperative name and principal place of business of Antitrust Division Research and Production Act of 1993, the standards development organization 15 U.S.C. 4301 et seq. (‘‘the Act’’), is: Automotive Life Institute, Notice Pursuant to the National Automotive Lift Institute–Certification Indialantic, FL. The nature and scope of Cooperative Research and Production Program (‘‘ALI–CP’’) has filed written ALI’s standards development activities Act of 1993—Commission on English notifications simultaneously with the are: Development of automotive lift Language Program Accreditation Attorney General and the Federal Trade safety standards including, but not Commission disclosing (1) The name limited to, standards for construction, Notice is hereby given that, on September 22, 2004, pursuant to section and principal place of business of the installation, operation, inspection, and 6(a) of the National Cooperative standards development organization maintenance. Research and Production Act of 1993, and (2) the nature and scope of its Dorothy B. Fountain, 15 U.S.C. 4301 et seq. (‘‘the Act’’), standards development activities. The Deputy Director of Operations, Antitrust Commission on English Language notifications were filed for the purpose Division. Program Accreditation (‘‘CEA’’) has of invoking the Act’s provisions limiting [FR Doc. 04–25867 Filed 11–19–04; 8:45 am] filed written notifications the recovery of antitrust plaintiffs to BILLING CODE 4410–11–M simultaneously with the Attorney actual damages under specified General and the Federal Trade circumstances. Commission disclosing (1) the name and Pursuant to section 6(b) of the Act, the DEPARTMENT OF JUSTICE principal place of business of the standards development organization name and principal place of business of Antitrust Division the standards development organization and (2) the nature and scope of its is: Automotive Lift Institute— Notice Pursuant to the National standards development activities. The Certification Program, Indialantic, FL. Cooperative Research and Production notifications were filed for the purpose The nature and scope of ALI–CP’s Act of 1993—Builders Hardware of invoking the Act’s provisions limiting standards development activities are: Manufacturers Association, Inc. the recovery of antitrust plaintiffs to development of automotive lift safety actual damages under specified Notice is hereby given that, on standards including, but not limited to, circumstances. September 20, 2004, pursuant to section Pursuant to section 6(b) of the Act, the standards for design, construction, 6(a) of the National Cooperative name and principal place of business of testing, validation (certification), Research and Production Act of 1993, the standards development organization 15 U.S.C. 4301 et seq. (‘‘the Act’’), is: Commission on English Language Builders Hardware Manufacturers Program Accreditation, Alexandria, VA.

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The nature and scope of CEA’s DEPARTMENT OF JUSTICE and (2) the nature and scope of its standards development activities are: To standards development activities. The promote best practices in English Antitrust Division notifications were filed for the purpose language instruction and administration of invoking the Act’s provisions limiting Notice Pursuant to the National the recovery of antitrust plaintiffs to in the United States through the Cooperative Research and Production development of standards, which form actual damages under specified Act of 1993—Consortium for Advanced circumstances. the foundation of the accreditation Manufacturing–International review process. Pursuant to section 6(b) of the Act, the Notice is hereby given that, on name and principal place of business of Dorothy B. Fountain, September 16, 2004, pursuant to section the standards development organization Deputy Director of Operations, Antitrust 6(a) of the National Cooperative is: Cyber Security Industry Alliance, Division. Research and Production Act of 1993, Inc., Wakefield, MA. The nature and [FR Doc. 04–25834 Filed 11–19–04; 8:45 am] 15 U.S.C. 4301 et seq. (‘‘the Act’’), scope of CSIA’s standards development activities are: To promote the BILLING CODE 4410–11–M Consortium for Advanced Manufacturing–International (‘‘CAM–I’’) continuous enhancement of cyber has filed written notifications security through public policy, DEPARTMENT OF JUSTICE simultaneously with the Attorney education and technology-focused General and the Federal Trade initiatives; (2) to promote such Antitrust Division Commission disclosing (1) the name and initiatives across the cyber security principal place of business of the industry and on a global basis; (3) to Notice Pursuant to the National standards development organization promote and encourage the adoption of Cooperative Research and Production and (2) the nature and scope of its strong, effective technology standards Act of 1993—Composite Panel standards development activities. The relating to the cyber security industry Association notifications were filed for the purpose through the foregoing initiatives and of invoking the Act’s provisions limiting public education; and (4) to undertake Notice is hereby given that, on the recovery of antitrust plaintiffs to such other activities as may from time September 14, 2004, pursuant to section actual damages under specified to time be appropriate to further the 6(a) of the National Cooperative circumstances. purposes and achieve the goals set forth Research and Production Act of 1993, Pursuant to section 6(b) of the Act, the above. 15 U.S.C. 4301 et seq. (‘‘the Act’’), name and principal place of business of Dorothy B. Fountain, the standards development organization Composite Panel Association (‘‘CPA’’) Deputy Director of Operations, Antitrust has filed written notifications is: Consortium for Advanced Division. Manufacturing–International, Fort simultaneously with the Attorney [FR Doc. 04–25869 Filed 11–19–04; 8:45 am] Worth, TX. The nature and scope of General and the Federal Trade BILLING CODE 4410–11–M CAM–I’s standards development Commission disclosing (1) the name and activities are: To focus on information principal place of business of the preparation for computer aided/ DEPARTMENT OF JUSTICE standards development organization integrated manufacturing systems and and (2) the nature and scope of its methods related to standards software Antitrust Division standards development activities. The input/output, interfaces, and language notifications were filed for the purpose specifications. Notice Pursuant to the National of invoking the Act’s provisions limiting Cooperative Research and Production Dorothy B. Fountain, the recovery of antitrust plaintiffs to Act of 1993—Distributed Management actual damages under specified Deputy Director of Operations, Antitrust Task Force, Inc. Division. circumstances. [FR Doc. 04–25860 Filed 11–19–04; 8:45 am] Notice is hereby given that, on Pursuant to section 6(b) of the Act, the BILLING CODE 4410–11–M September 17, 2004, pursuant to section name and principal place of business of 6(a) of the National Cooperative the standards development organization Research and Production Act of 1993, is: Composite Panel Association, DEPARTMENT OF JUSTICE 15 U.S.C. 4301 et seq. (‘‘the Act’’), Gaithersburg, MD. The nature and scope Distributed Management Task Force, of CPA’s standards development Antitrust Division Inc. (‘‘DMTF’’) has filed written activities are: Increasing acceptance and Notice Pursuant to the National notifications simultaneously with the use of composite panel products Cooperative Research and Production Attorney General and the Federal Trade (products made from composite wood Act of 1993—Cyber Security Industry Commission disclosing (1) the name and and allied materials) and educating Alliance, Inc. principal place of business of the users about their benefits. CPA standards development organization represents the composite panel industry Notice is hereby given that, on and (2) the nature and scope of its on technical, environmental, quality September 20, 2004, pursuant to section standards development activities. The assurance and product acceptance 6(a) of the National Cooperative notifications were filed for the purpose issues. Research and Production Act of 1993, of invoking the Act’s provisions limiting 15 U.S.C. 4301 et seq. (‘‘the Act’’), Cyber the recovery of antitrust plaintiffs to Dorothy B. Fountain, Security Industry Alliance, Inc. actual damages under specified Deputy Director of Operations, Antitrust (‘‘CSIA’’) has filed written notifications circumstances. Division. simultaneously with the Attorney Pursuant to section 6(b) of the Act, the [FR Doc. 04–25831 Filed 11–19–04; 8:45 am] General and the Federal Trade name and principal place of business of BILLING CODE 4410–11–M Commission disclosing (1) the name and the standards development organization principal place of business of the is: Distributed Management Task Force, standards development organization Inc., Portland, OR. The nature and scope

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of DMTF’s standards development DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE activities are: To develop standards for common management infrastructure Antitrust Division Antitrust Division components for instrumentation, Notice Pursuant to the National Notice Pursuant to the National control, and communications in a Cooperative Research and Production platform-independent and technology Cooperative Research and Production Act of 1993—Electric Reliability Act of 1993—Electronic Industries neutral way. DMTF technologies Alliance include information models (CIM), Council of Texas, Inc. communication/control protocols Notice is hereby given that, on Notice is hereby given that, on (WBEM), and core management September 16, 2004, pursuant to section September 24, 2004, pursuant to section services/utilities. 6(a) of the National Cooperative 6(a) of the National Cooperative Research and Production Act of 1993, Dorothy B. Fountain, Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), Deputy Director of Operations, Antitrust 15 U.S.C. 4301 et seq. (‘‘the Act’’), Electronic Industries Alliance (‘‘EIA’’) Division. Electric Reliability Council of Texas, has filed written notifications [FR Doc. 04–25841 Filed 11–19–04; 8:45 am] Inc. (‘‘ERCOT’’) has filed written simultaneously with the Attorney BILLING CODE 4410–11–M notifications simultaneously with the General and the Federal Trade Attorney General and the Federal Trade Commission disclosing (1) the name and Commission disclosing (1) the name and principal place of business of the DEPARTMENT OF JUSTICE principal place of business of the standards development organization standards development organization and (2) the nature and scope of its Antitrust Division and (2) the nature and scope of its standards development activities. The standards development activities. The notifications were filed for the purpose Notice Pursuant to the National of invoking the Act’s provisions limiting notifications were filed for the purpose Cooperative Research and Production the recovery of antitrust plaintiffs to of invoking the Act’s provisions limiting Act of 1993—DVB Project actual damages under specified the recovery of antitrust plaintiffs to circumstances. actual damages under specified Notice is hereby given that, on Pursuant to section 6(b) of the Act, the circumstances. September 20, 2004, pursuant to section name and principal place of business of 6(a) of the National Cooperative Pursuant to section 6(b) of the Act, the the standards development organization Research and Production Act of 1993, name and principal place of business of is: Electronic Industries Alliance, 15 U.S.C. 4301 et seq. (‘‘the Act’’), DVB the standards development organization Arlington, VA. The nature and scope of Project (‘‘DVB’’) has filed written is: Electric Reliability Council of Texas, EIA’s standards development activities are: The development and maintenance notifications simultaneously with the Inc., Austin, TX. The nature and scope of voluntary industry standards and Attorney General and the Federal Trade of ERCOT’s standards development related documents, formulation of Commission disclosing (1) the name and activities are: ERCOT manages a major portion of the state’s electric power grid. positions for presentation on behalf of principal place of business of the the United States in international ERCOT is responsible for managing the standards development organization standards fora, and preparation of reliable supply of electricity to all and (2) the nature and scope of its technical information and reports for standards development activities. The customers within its region by use by industry and government, on notifications were filed for the purpose maintaining a balance between behalf of manufacturers of electronic of invoking the Act’s provisions limiting forecasted schedules of electricity products and providers of services to the recovery of antitrust plaintiffs to providers and the actual electricity said manufacturers and consumers. actual damages under specified demand among all market participants. Dorothy B. Fountain, circumstances. ERCOT’s members include utilities (municipals, cooperatives and investor Deputy Director of Operations, Antitrust Pursuant to section 6(b) of the Act, the owned utilities), power marketers, Division. name and principal place of business of generation providers, retail service [FR Doc. 04–25846 Filed 11–19–04; 8:45 am] the standards development organization providers and end-use customer BILLING CODE 4410–11–M is: DVB Project, Geneva, representatives. SWITZERLAND. The nature and scope of DVB’s standards development ERCOT members and market DEPARTMENT OF JUSTICE activities are: To develop, assist in participants meet on a regular basis at conformance testing in respect of, ERCOT facilities to create, revise and Antitrust Division discuss the standards, policies and provide certification services related to, Notice Pursuant to the National procedures in place for the ERCOT and promote specifications for digital Cooperative Research and Production video broadcasting and related fields. region and markets. Because Act of 1993—Gaming Standards participants are adopting changes to For further information about the DVB Association existing standards on a regular basis, Project, its activities, and its ERCOT’s standards development Notice is hereby given that, on membership, see http://www.dvb.org. activities must be considered on-going. September 20, 2004, pursuant to section Dorothy B. Fountain, 6(a) of the national Cooperative Dorothy B. Fountain, Deputy Director of Operations, Antitrust Research and Production Act of 1993, Division. Deputy Director of Operations, Antitrust 15 U.S.C. 4301 et seq. (‘‘the Act’’), Division. Gaming Standards Association (‘‘GSA’’) [FR Doc. 04–25871 Filed 11–19–04; 8:45 am] [FR Doc. 04–25872 Filed 11–19–04; 8:45 am] has filed written notifications BILLING CODE 4410–11–M BILLING CODE 4410–11–M simultaneously with the Attorney General and the Federal Trade

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Commission disclosing (1) the name and Standard Z97.1, American National smart card specifications, standards, principal place of business of the Standard for Safety Glazing Materials and industry groups as appropriate. standards development organization Used in Buildings—Safety Performance Dorothy B. Fountain, and (2) the nature and scope of its Specifications and Methods of Test, standards development activities. The establishing the specifications and Deputy Director of Operations, Antitrust Division. notifications were filed for the purpose methods of tests for safety properties of [FR Doc. 04–25849 Filed 11–19–04; 8:45 am] of invoking the Act’s provisions limiting safety glazing materials (glazing the recovery of antitrust plaintiffs to materials designed to promote safety BILLING CODE 4410–11–M actual damages under specified and to reduce or minimize the circumstances. likelihood of cutting and piercing DEPARTMENT OF JUSTICE Pursuant to section 6(b) of the Act, the injuries when the glazing materials are name and principal place of business of broken by human contact) as used for all Antitrust Division the standards development organization building and architectural purposes. is: Gaming Standards Association, Notice Pursuant to the National Fremont, CA. The nature and scope of Dorothy B. Fountain, Cooperative Research and Production GSA’s standards development activities Deputy Director of Operations, Antitrust Act of 1993—Illuminating Engineering are: GSA is an international trade Division. Society of North America association representing gaming [FR Doc. 04–25852 Filed 11–19–04; 8:45 am] Notice is hereby given that, on manufacturers, suppliers and operators. BILLING CODE 4410–11–M It facilitates the identification, September 7, 2004, pursuant to section definition, development, promotion, 6(a) of the National Cooperative and implementation of open standards DEPARTMENT OF JUSTICE Research and Production Act of 1993, to enable innovation, education, and 15 U.S.C. 4301 et seq. (‘‘the Act’’), communication for the benefit of the Antitrust Division Illuminating Engineering Society of entire gaming industry. North America (‘‘IESNA’’) has filed Notice Pursuant to the National written notifications simultaneously Dorothy B. Fountain, Cooperative Research and Production with the Attorney General and the Deputy Director of Operations, Antitrust Act of 1993—GlobalPlatform, Inc. Federal Trade Commission disclosing Division. (1) the name and principal place of [FR Doc. 04–25839 Filed 11–19–04; 8:45 am] Notice is hereby given that, on business of the standards development BILLING CODE 4410–11–M September 20, 2004, pursuant to section organization and (2) the nature and 6(a) of the National Cooperative scope of its standards development activities. The notifications were filed DEPARTMENT OF JUSTICE Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), for the purpose of invoking the Act’s Antitrust Division GlobalPlatform, Inc. (‘‘GlobalPlatform’’) provisions limiting the recovery of has filed written notifications antitrust plaintiffs to actual damages Notice Pursuant to the National simultaneously with the Attorney under specified circumstances. Cooperative Research and Production General and the Federal Trade Pursuant to section 6(b) of the Act, the Act of 1993—Glazing Industry Commission disclosing (1) the name and name and principal place of business of Secretariat Committee principal place of business of the the standards development organization standards development organization is: Illuminating Engineering Society of Notice is hereby given that, on and (2) the nature and scope of its North America, New York, NY. The September 28, 2004, pursuant to section standards development activities. The nature and scope of IESNA’s standards 6(a) of the National Cooperative notifications were filed for the purpose development activities are: The study of Research and Production Act of 1993, of invoking the Act’s provisions limiting subjects relating to the science and art 15 U.S.C. 4301 et seq. (‘‘the Act’’), the recover of antitrust plaintiffs to of illumination and the publication of Glazing Industry Secretariat Committee reports and standards thereon for the (‘‘GISC’’) has filed written notifications actual damages under specified circumstances. improvement of the lighted simultaneously with the Attorney environment. General and the Federal Trade Pursuant to section 6(b) of the Act, the Commission disclosing (1) the name and name and principal place of business of Dorothy B. Fountain, principal place of business of the the standards development organization Deputy Director of Operations, Antitrust standards development organization is: GlobalPlatform, Inc., Foster City, CA. Division. and (2) the nature and scope of its The nature and scope of [FR Doc. 04–25845 Filed 11–19–04; 8:45 am] standards development activities. The GlobalPlatform’s standards development BILLING CODE 4410–11–M notifications were filed for the purpose activities are: (1) to Define, adopt, and of invoking the Act’s provisions limiting evolve appropriate standards and the recovery of antitrust plaintiffs to specifications, including but not limited DEPARTMENT OF JUSTICE actual damages under specified to standards and specifications for smart circumstances. cards, systems and devices; (2) to Antitrust Division Pursuant to section 6(b) of the Act, the facilitate and promote the development Notice Pursuant to the National name and principal place of business of of systems and software applications for Cooperative Research and Production the standards development organization multiple application smart cards Act of 1993—The Institute of Nuclear is: Glazing Industry Secretariat infrastructure; (3) to develop other Materials Management Committee, Topeka, KS. The nature and conventions needed to facilitate cross- scope of GISC’s standards development industry application loading, such as Notice is hereby given that, on activities are: To function as the card management, security, key September 20, 2004, pursuant to section Secretariat with oversight and management and personalization; and 6(a) of the National Cooperative administrative responsibilities for ANSI (4) to complement and enhance other Research and Production Act of 1993,

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15 U.S.C. 4301 et seq. (‘‘the Act’’), The provisions limiting the recovery of Research and Production Act of 1993, Institute of Nuclear Materials antitrust plaintiffs to actual damages 15 U.S.C. 4301 et seq. (‘‘the Act’’), the Management (‘‘INMM’’) has filed under specified circumstances. Joint Venture under ATP Award No. written notifications simultaneously Pursuant to section 6(b) of the Act, the 70NANB4H3044 (‘‘ATP JV’’) has filed with the Attorney General and the name and principal place of business of written notifications simultaneously Federal Trade Commission disclosing the standards development organization with the Attorney General and the (1) the name and principal place of is: International Imaging Industry Federal Trade Commission disclosing business of the standards development Association, Inc., Harrison, NY. The (1) the identities of the parties and (2) organization and (2) the nature and nature and scope of I3A’s standards the nature and objectives of the venture. scope of its standards development development activities are: (a) To The notifications were filed for the activities. The notifications were filed promote the standardization of imaging purpose of invoking the Act’s provisions for the purpose of invoking the Act’s products and service and methods of limiting the recovery of antitrust provisions limiting the recovery of testing or rating the performance plaintiffs to actual damages under antitrust plaintiffs to actual damages thereof; (b) to sponsor, actively specified circumstances. under specified circumstances. participate in, and support the creation Pursuant to section 6(b) of the Act, the of one or more imaging standards and/ Pursuant to section 6(b) of the Act, the name and principal place of business of or protocols to enable manufacturers, identities of the parties are Sarnoff the standards development organization developers, and providers of various Corporation, Princeton, NJ; Autoliv is: The Institute of Nuclear Materials devices, software and services to ASP, Inc., Auburn Hills, MI; and Ford Management, Northbrook, IL. The achieve interoperability; (c) to collect Motor Company, Dearborn, MI. The nature and scope of INMM’s standards and disseminate information of value of general area of ATP JV’s planned development activities are: Standards manufacturers, sellers and consumers of activity is active automotive safety for the packaging and transportation of imaging products, and otherwise to through a novel fusion of vision and fissile and radioactive materials, and further the manufacturer, sale or use of radar sensors that will identify and non-nuclear hazardous materials imaging products and services; (d) to act evaluate impending collisions in time to including waste and mixed waste; but as the industry voice, appearing before take advance action. not including movement or handling and cooperating with legislative Dorothy B. Fountain, during processing and manufacturing committees, agencies, and government Deputy Director of Operations, Antitrust operations; and standards for protection, bodies in conjunction with matters Division. control, and accounting of special affecting the imaging industry; (e) to [FR Doc. 04–25868 Filed 11–19–04; 8:45 am] nuclear materials in all phases of the drive adoption of standards and nuclear fuel cycle, including analytical initiatives through a variety of BILLING CODE 4410–11–M procedures where necessary and special promotional efforts, including but not to this purpose, except that physical limited to marketing activities, DEPARTMENT OF JUSTICE protection of special nuclear materials development of proof of concept/ within a nuclear power plant is not feasibility demonstrations, and pilot/ Antitrust Division included. prototype or testing projects; (f) to promote and encourage a wider Dorothy B. Fountain, Notice Pursuant to the National understanding and appreciation of Cooperative Research and Production Deputy Director of Operations, Antitrust imaging, the imaging arts and a greater Division. Act of 1993—Material Handling use of imaging products and services; (g) Industry [FR Doc. 04–25858 Filed 11–19–04; 8:45 am] to further friendly and cordial relations BILLING CODE 4410–11–M among manufacturers, developers, and Notice is hereby given that, on providers of imaging products and September 21, 2004, pursuant to section DEPARTMENT OF JUSTICE services, and between such vendors and 6(a) of the National Cooperative the sellers and consumers of their Research and Production Act of 1993, Antitrust Division products; and (h) to undertake such 15 U.S.C. 4301 et seq. (‘‘the Act’’), other activities as may from time to time Material Handling Industry (‘‘MHI’’) has Notice Pursuant to the National be appropriate to further the purposes filed written notifications Cooperative Research and Production and achieve the goals set forth above. simultaneously with the Attorney Act of 1993—International Imaging Dorothy B. Fountain, General and the Federal Trade Industry Association, Inc. Deputy Director of Operations, Antitrust Commission disclosing (1) the name and Notice if hereby given that, on Division. principal place of business of the September 17, 2004, pursuant to section [FR Doc. 04–25857 Filed 11–19–04; 8:45 am] standards development organization and (2) the nature and scope of its 6(a) of the National Cooperative BILLING CODE 4410–11–M Research and Production Act of 1993, standards development activities. The 15 U.S.C. 4301 et seq. (‘‘the Act’’), notifications were filed for the purpose International Imaging Industry DEPARTMENT OF JUSTICE of invoking the Act’s provisions limiting Association, Inc. (‘‘I3A’’) has filed the recovery of antitrust plaintiffs to written notifications simultaneously Antitrust Division actual damages under specified circumstances. with the Attorney General and the Notice Pursant to the National Federal Trade Commission disclosing Cooperative Research and Production Pursuant to section 6(b) of the Act, the (1) the name and principal place of Act of 1993—Joint Venture Under ATP name and principal place of business of business of the standards development Award No. 70NANB4H3044 the standards development organization organization and (2) the nature and is: Material Handling Industry, scope of its standards development Notice is hereby given that, on Charlotte, NC. The nature and scope of activities. The notifications were filed October 22, 2004, pursuant to section MHI’s standards development activities for the purpose of invoking the Act’s 6(a) of the National Cooperative are: ANSI accredited standards

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developer for various types of material Association (‘‘NEMA’’) has filed written DEPARTMENT OF JUSTICE handling equipment. notifications simultaneously with the Antritrust Division Dorothy B. Fountain, Attorney General and the Federal Trade Commission disclosing (1) the name and Deputy Director of Operations, Antitrust Notice Pursuant to the National principal place of business of the Division. Cooperative Research and Production standards development organization [FR Doc. 04–25862 Filed 11–19–04; 8:45 am] Act of 1993—National Fluid Power and (2) the nature and scope of its BILLING CODE 4410–11–M Association: Cooperative Network for standards development activities. The Research in Motion Control Through notifications were filed for the purpose Fluid Power DEPARTMENT OF JUSTICE of invoking the Act’s provisions limiting the recovery of antitrrust plaintiffs to Notice is hereby given that, on Antitrust Division actual damages under specified September 21, 2004, pursuant to section circumstances. 6(a) of the National Cooperative Notice Pursuant to the National Research and Production Act of 1993, Cooperative Research and Production Pursuant to section 6(b) of the Act, the 15 U.S.C. 4301 et seq. (‘‘the Act’’), Act of 1993—National Council for name and principal place of business of National Fluid Power Association: Prescription Drug Programs the standards development organization Cooperative Network for Research in is: National Electrical Manufacturers Motion Control Through Fluid Power Notice is hereby given that, on Association, Rosslyn, VA. The nature September 14, 2004, pursuant to section (‘‘CNR’’) has filed written notifications and scope of NEMA’s standards simultaneously with the Attorney 6(a) of the National Cooperative development activities are; NEMA Research and Production Act of 1993, General and the Federal Trade administers and publishes standards 15 U.S.C. 4301 et seq. (‘‘the Act’’), Commission disclosing (1) the identities that are related to a spectrum of National Council for Prescription Drug of the parties and (2) the nature and electrical products produced globally, Programs (‘‘NCPDP’’) has filed written objectives of the venture. The notifications simultaneously with the including but not limited to, industrial notifications were filed for the purpose Attorney General and the Federal Trade automation equipment including of invoking the Act’s provisions limiting Commission disclosing (1) the name and industrial controls and systems, motors, the recovery of antitrust plaintiffs to principal place of business of the and power sources for welding; lighting actual damages under specified standards development organization systems including lamps, lighting circumstances. and (2) the nature and scope of its controls, lamp ballasts, and lighting Pursuant to section 6(b) of the Act, the standards development activities. The fixtures (luminaries); consumer identifies of the parties are National notifications were filed for the purpose products including dry batteries, smoke Fluid Power Association, Milwaukee, of invoking the Act’s provisions limiting and fire detectors, and residential WI; Ace Controls, Inc., Farmington the recovery of antitrust plaintiffs to controls; building construction products Hills, MI; Balluff, Inc., Florence, KY; actual damages under specified including circuit breakers, receptacles, Bimba Manufacturing Company, Monee, circumstances. conduit, outlet boxes, switches, surge IL; Enfield Technologies, Trumbull, CT; Bosch Rexroth Corporation, Hoffman Pursuant to section 6(b) of the Act, the suppressors, insulating materials, and Estates, IL; Caterpillar Inc., Joliet, IL; name and principal place of business of wire and cable; equipment for the the standards development organization Eaton Corporation, Eden Prairie, MN; electric utility industry; and medical Festo Corporation, Hauppauge, NY; is: National Council for Prescription imaging equipment including CT, Drug Programs, Scottsdale, AZ. The Gates Corporation, Denver, CO; Ultrasound, X-ray, and MRI. NEMA also Hoerbiger-Origa Corporation, Glendale nature and scope of NCPDP’s standards serves as Secretariat for DICOM (Digital development activities are: Creating and Heights, IL; HUSCO International, Inc., Communications in Medicine) Waukesha, WI; Moog Inc., East Aurora, promoting standards for the transfer for Standards Committee; certain ANSI data to and from the pharmacy services NY; Parker Hannifin Corporation, Accredited Standards Committees sector of the healthcare industry. Cleveland, OH; Ross Controls, Troy, MI; (‘‘ASC’’); and certain technical Quality Control Corporation, Chicago, Dorothy B. Fountain, committees of the International IL; Sauer-Danfoss, Ames, IA; Georgia Deputy Director of Operations, Antitrust Electrotechnical Commission (IEC). Institute of Technology, Atlanta, GA; Division. NEMA also publishes the standards Milwaukee School of Engineering, [FR Doc. 04–25863 Filed 11–19–04; 8:45 am] developed by itself and by DICOM and Milwaukee, WI; and University of BILLING CODE 4410–11–M ASC. Minnesota, Minneapolis, MN. The nature and objectives of CNR’s planned Dorothy B. Fountain, activities are to strengthen ties between DEPARTMENT OF JUSTICE Deputy Director of Operations, Antitrust researchers and the fluid power Division. industry, stimulate interest in fluid Antitrust Division [FR Doc. 04–25842 Filed 11–19–04; 8:45 am] power at research universities, attract Notice Pursuant to the National BILLING CODE 4410–11–M highly qualified students to the study of Cooperative Research and Production fluid power, to provide and make Act of 1993—National Electrical accessible quality university research Manufacturers Association and development on motion control issues facing the fluid power industry as Notice is hereby given that, on a whole, and to advance the promotion September 17, 2004, pursuant to section of, provide support for, and encourage 6(a) of the National Cooperative participation in, research, development, Research and Production Act of 1993, and education relevant to the fluid 15 U.S.C. 4301 et seq. (‘‘the Act’’), power industry in general. CNR’s initial National Electrical Manufacturers research projects include the

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development of: (i) A numerical model conformance and interoperability, and organizations and associations with a (and associated computer program) of a industry domains. similar vision and mission to that of OGC, including local, sub-national and generalized reciprocating hydraulic rod Dorothy B. Fountain, seal, including mixed lubrication and national agencies and associations of Deputy Director of Operations, Antitrust private persons and organizations; (5) to surface roughness; (ii) a unique and Division. provide a regional and global industry complete integration of fabrication and [FR Doc. 04–25832 Filed 11–19–04; 8:45 am] design optimization leading to the forum to promote co-operative business BILLING CODE 4410–11–M creation of hydraulic or pneumatic development initiatives related to components that derive their light distributed geoprocessing; (6) to provide government and other policymaking weight and high stiffness from DEPARTMENT OF JUSTICE engineered small-scale internal bodies with neutral, third party reports structures; and (iii) integrated PTQ Antitrust Division and analyses explaining how (pressure, temperature and flow rate) interoperatibility, as enabled by OGC’s sensing for fluid power systems. Notice Pursuant to the National work, can improve government and Cooperative Research and Production other enterprise operations and These three projects will be Act of 1993—Open Geospatial stimulate market development, conducted by the Georgia Institute of Consortium, Inc. adjusting to meet regional needs and Technology, Milwaukee School of circumstances; (7) to liaise and Engineering, and the University of Notice is hereby given that, on cooperate with other standards Minnesota respectively. September 15, 2004, pursuant to section development and setting organizations 6(a) of the National Cooperative and bodies world-wide that operate Dorothy B. Fountain, Research and Production Act of 1993, with missions and strategic directions Deputy Director of Operations, Antritrust 15 U.S.C. 4301 et seq. (‘‘the Act’’), Open similar to those of OGC, including Division. Geospatial Consortium, Inc. (‘‘OGC’’) organizations that address worldwide [FR Doc. 04–25851 Filed 11–19–04; 8:45 am] has filed written notifications research requirements for interoperable BILLING CODE 4410–11–M simultaneously with the Attorney geospatial technologies and geographic General and the Federal Trade data, including activities where there is Commission disclosing (1) The name high social value associated with open DEPARTMENT OF JUSTICE and principal place of business of the networks providing access to standards development organization information services, such as disaster Antitrust Division and (2) the nature and scope of its preparedness and response, e- standards development activities. The Government, sustainable development, Notice Pursuant to the National notifications were filed for the purpose research, education, and citizen Cooperative Research and Production of invoking the Act’s provisions limiting engagement; and (8) to promote and to Act of 1993—Oasis Open the recovery of antitrust plaintiffs to obtain funding to meet the need for actual damages under specified education, promotion, and research Notice is hereby given that, on circumstances. related to interoperable geospatial September 20, 2004, pursuant to section Pursuant to section 6(b) of the Act, the technologies and data in the foregoing name and principal place of business of 6(a) of the National Cooperative areas. OGC may also develop and the standards development organization Research and Production Act of 1993, maintain standards and specifications in is: Open Geospatial Consortium, Inc., 15 U.S.C. 4301 et seq. (‘‘the Act’’), the same areas, perform certification of Wayland, MA. The nature and scope of OASIS Open (‘‘OASIS’’) has filed technology compliant with such OGC’s standards development activities written notifications simultaneously standards and specification; and are: (1) To facilitate a formal, member- with the Attorney General and the perform other related research and driven, consensus process to promote Federal Trade Commission disclosing experimentation in, and implementation the development and use of advanced (1) the name and principal place of of, open systems standards and open systems standards and techniques business of the standards development technology. organization and (2) the nature and for the definition and implementation of scope of its standards development the National and Global Information Dorothy B. Fountain, activities. The notifications were filed Infrastructures, with an initial emphasis Deputy Director of Operations, Antitrust for the purpose of invoking the Act’s on the geosciences and related imaging Division. provisions limiting the recovery of and distributed multimedia [FR Doc. 04–25833 Filed 11–19–04; 8:45 am] antitrust plaintiffs to actual damages technologies; (2) to enable BILLING CODE 4410–11–M under specified circumstances. interoperability of spatial components and services from different vendors by Pursuant to section 6(b) of the Act, the engaging in outreach, education, DEPARTMENT OF JUSTICE name and principal place of business of recruitment, and adoption activities the standards development organization focused on helping enterprises of all Antitrust Division is: OASIS Open, Billerica, MA. The kinds understand that enterprise data nature and scope of OASIS’ standards Notice Pursuant to the National can be leveraged with spatial Cooperative Research and Production development activities are: To advance capabilities to extend the use of the development, adoption, application, Act of 1993—Outdoor Power corporate information throughout the Equipment Institute and implementation of structured enterprise; (3) to ensure that standards information standards. The consortium adopted by OGC become widely used Notice is hereby given that, on produces standards for Web services, globally; (4) to operate subsidiaries in September 16, 2004, pursuant to section security, e-business, law and accordance with the strategic direction 6(a) of the National Cooperative government, supply chain, computing of OGC, including subsidiaries that Research and Production Act of 1993, resource management, document-centric represent regionally-based OGC 15 U.S.C. 4301 et seq. (‘‘the Act’’), applications, XML processing, members in regional membership Outdoor Power Equipment Institute

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(‘‘OPEI’’) has filed written notifications Production Company, Houston, TX; water reclamation, wastewater recovery, simultaneously with the Attorney Total E&P Services, Courbevoie, and tools used to develop these General and the Federal Trade FRANCE; Halliburton Energy Services solutions. The program will be carried Commission disclosing (1) the name and Group, Houston, TX; and Statoil ASA, out through compiling, presenting and principal place of business of the Stavanger, NORWAY. The general area exchanging of individual research standards development organization of PERF Project No. 03–03’s planned projects, including identification of and (2) the nature and scope of its activity is to generate a set of model methods to improve water management standards development activities. The technical standards that may be for industry. notifications were filed for the purpose incorporated into regulations Dorothy B. Fountain, of invoking the Act’s provisions limiting (framework) based on a risk approach to the recovery of antitrust plaintiffs to protect health and the environment at Deputy Director of Operations, Antitrust Division. actual damages under specified E&P operations. The activities to be circumstances. carried out include the development of [FR Doc. 04–25853 Filed 11–19–04; 8:45 am] Pursuant to section 6(b) of the Act, the a framework from which risk based BILLING CODE 4410–11–M name and principal place of business of technical standards can be derived. the standards development organization Participation in this joint venture will DEPARTMENT OF JUSTICE is: Outdoor Power Equipment Institute, remain open to qualified persons and Alexandria, VA. The nature and scope organizations, and the participants Antitrust Division of OPEI’s standards development intend to file additional written activities are: The development of notifications disclosing all changes in Notice Pursuant to the National voluntary standards for wheeled and membership. Cooperative Research and Production handheld outdoor power equipment Dorothy B. Fountain, Act of 1993—The Software Defined including, but not limited to: Walk- Radio Form behind mowers; ride-on machines with Deputy Director of Operations, Antitrust Division. mowers; snow throwers; commercial Notice is hereby given that, on turf care equipment; powered shredder/ [FR Doc. 04–25836 Filed 11–19–04; 8:45 am] September 20, 2004, pursuant to section grinders and shredded/baggers; walk- BILLING CODE 4410–11–M 6(a) of the National Cooperative behind powered rotary tillers; hand- Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), The held and backpack, gasoline-engine- DEPARTMENT OF JUSTICE powered blowers; grass trimmers; and Software Defined Radio Forum (‘‘SDR brush cutters. Forum’’ has filed written notifications Antitrust Division simultaneously with the Attorney Dorothy B. Fountain, Notice Pursuant to the National General and the Federal Trade Deputy Director of Operations, Antitrust Cooperative Research and Production Commission disclosing (1) the name and Division. Act of 1993—Petroleum Environmental principal place of business of the [FR Doc. 04–25855 Filed 11–19–04; 8:45 am] Research Forum Project No. 2002–13 standards development organization BILLING CODE 4410–11–M and (2) the nature and scope of its Notice is hereby given that, on standards development activities. The October 20, 2004, pursuant to section notifications were filed for the purpose DEPARTMENT OF JUSTICE 6(a) of the National Cooperative of invoking the Act’s provisions limiting Research and Production Act of 1993, the recovery of antitrust plaintiffs to Antitrust Division 15 U.S.C. 4301 et seq. (‘‘the Act’’), actual damages under specified Notice Pursuant to the National Petroleum Environmental Research circumstances. Pursuant to section 6(b) of the Act, the Cooperative Research and Production Forum Project No. 2002–13 (‘‘PERF name and principal place of business of Act of 1993—Petroleum Environmental Project No. 2002–13’’) has filed written the standards development organization Research Forum Project No. 03–03 notifications simultaneously with the Attorney General and the Federal Trade is: The Software Defined Radio Forum, Notice is hereby given that, on Commission disclosing (1) the identities Denver, CO. The nature and scope of November 2, 2004, pursuant to section of the parties to the venture and (2) the SDR Forum’s standards development 6(a) of the National Cooperative nature and objectives of the venture. activities are: (a) To promote the Research and Production Act of 1993, The notifications were filed for the development and application of a 15 U.S.C. 4301 et seq. (‘‘the Act’’), purpose of invoking the Act’s provisions compatible modular technology base for Petroleum Environmental Research limiting the recovery of antitrust software-defined information transfer Forum Project No. 03–03 (‘‘PERF; plaintiffs to actual damages under systems and devices; (b) to comprise an Project No. 03–03’’) has filed written specified circumstances. international group of equipment notifications simultaneously with the Pursuant to section 6(b) of the Act, the vendors, subsystem vendors, software Attorney General and the Federal Trade identities of the parties to the venture developers, technology developers, Commission disclosing (1) the identities are: ExxonMobil Research and communication service providers, of the parties to the venture and (2) the Engineering Company, Fairfax, VA; research and engineering organizations, nature and objectives of the venture. ConocoPhillips Company, Houston, TX; government users, regulators and other The notifications were filed for the and Unocal, Sugarland, TX. The nature interested parties who share the purpose of invoking the Act’s provisions and objectives of the venture are to common business interest of supporting limiting the recovery of antitrust create a forum for sharing information the advancement of a compatible plaintiffs to actual damages under regarding the industry’s water modular technology base for multimode specified circumstances. management practices. This may multiband information transfer systems Pursuant to section 6(b) of the Act, the include water reuse solutions in and devices; (c) to promote the identities of the parties to the venture practice, rejected reuse solutions, case development and application of such are: ChevronTexaco Energy Technology studies in the area of water reuse/ technology worldwide; (d) to promote Company, Richmond, CA; ExxonMobil minimization/optimization, produced national and international compatibility

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and interoperability for such 6(b) of the Act on January 22, 2002 (67 6(a) of the National Cooperative technology; (e) to develop and/or FR 2910). Research and Production Act of 1993, promulgate uniform standards for such The last notification was filed with 15 U.S.C. 4301 et seq. (‘‘the Act’’), Steel technology; and (f) to conduct the Department on August 7, 2003. A Tank Institute (‘‘STI’’) has filed written cooperative research, perform tests and notice was published in the Federal notifications simultaneously with the prepare and disseminate informational Register pursuant to section 6(b) of the Attorney General and the Federal Trade materials relating to such technology. Act on September 8, 2003 (68 FR Commission disclosing (1) the name and 52959). principal place of business of the Dorothy B. Fountain, standards development organization Dorothy B. Fountain, Deputy Director of Operations, Antitrust and (2) the nature and scope of its Division. Deputy Director of Operations, Antitrust standards development activities. The [FR Doc. 04–25835 Filed 11–19–04; 8:45 am] Division. notifications were filed for the purpose BILLING CODE 4410–11–M [FR Doc. 04–25861 Filed 11–19–04; 8:45 am] of invoking the Act’s provisions limiting BILLING CODE 4410–11–M the recovery of antitrust plaintiffs to actual damages under specified DEPARTMENT OF JUSTICE circumstances. DEPARTMENT OF JUSTICE Pursuant to section 6(b) of the Act, the Antitrust Division name and principal place of business of Antitrust Division Notice Pursuant to the National the standards development organization Cooperative Research and Production Notice Pursuant to the National is: Steel Tank Institute, Lake Zurich, IL. Act of 1993—Southwest Research Cooperative Research and Production The nature and scope of STI’s standards Institute: The Consortium for NASGRO Act of 1993—Steel Joist Institute development activities are: To develop, Development and Support promulgate and publish voluntary Notice is hereby given that, on consensus standards, recommended Notice is hereby given that, on September 17, 2004, pursuant to section practices and installation guidelines for October 18, 2004, pursuant to section 6(a) of the National Cooperative the manufacture, installation, testing 6(a) of the nat8ional Cooperative Research and Production Act of 1993, and inspection of underground and Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), Steel aboveground shop-fabricated steel 15 U.S.C. 4301 et seq. (‘‘the Act’’), Joist Institute (‘‘SJI’’) has filed written storage tanks. STI standards ensure that Southwest Research Institute: The notifications simultaneously with the underground and aboveground shop- Consortium for NASGRO Development Attorney General and the Federal Trade fabricated steel storage tanks meet and Support has filed written Commission disclosing (1) the name and standards for safety and reliability so notifications simultaneously with the principal place of business of the that users and other members of the Attorney General and the Federal Trade standards development organization public are assured that such tanks are Commission disclosing changes in the and (2) the nature and scope of its properly manufactured, installed, tested membership and project status of the standards development activities. The and inspected. STI’s voluntary venture. The notifications were filed for notifications were filed for the purpose consensus standards are developed by the purpose of extending the Act’s of invoking the Act’s provisions limiting STI members and other interested provisions limiting the recovery of the recovery of antitrust plaintiffs to parties who wish to participate in the antitrust plaintiffs to actual damages actual damages under specified process. under specified circumstances. circumstances. Additional information concerning Specifically, the period of performance Pursuant to section 6(b) of the Act, the STI can be obtained from Wayne Geyer, has been extended to May 31, 2007. name and principal place of business of Executive Director, STI, at (847) 438– Additionally, Honeywell International, the standards development organization 8265 (ext. 234). Inc., Phoenix, AZ, has been added as a is: Steel Joist Institute, Myrtle Beach, SC. The nature and scope of SJI’s Dorothy B. Fountain, party to this venture; and Agusta s.p.a., Deputy Director of Operations, Antitrust Costina Costa de Samarate, Italy; Korea standards development activities are: Continually develop standard Division. Aerospace Industries, Ltd., Kyungnam, [FR Doc. 04–25847 Filed 11–19–04; 8:45 am] Korea; and Mitsubishi Heavy Industry, specifications for the steel joist industry BILLING CODE 4410–11–M Ltd., Nagoya, Japan are no longer active through the American National participants. Standards Institute through consensus balloting. No other changes have been made in DEPARTMENT OF JUSTICE either the membership or planned Dorothy B. Fountain, activity of the group research project. Deputy Director of Operations, Antitrust Antitrust Division Membership in this group research Division. Notice Pursuant to the National project remains open, and Southwest [FR Doc. 04–25864 Filed 11–19–04; 8:45 am] Cooperative Research and Production Research Institute: The Consortium for BILLING CODE 4410–11–M NASGRO Development and Support Act of 1993—Unified Abrasive intends to file additional written Manufacturers Association notification disclosing all changes in DEPARTMENT OF JUSTICE Notice is hereby given that, on membership. September 17, 2004, pursuant to section On October 3, 2001, Southwest Antitrust Division 6(a) of the National Cooperative Research Institute: the Consortium for Notice Pursuant to the National Research and Production Act of 1993, NASGRO Development and Support Cooperative Research and Production 15 U.S.C. 4301 et seq. (‘‘the Act’’), filed its original notification pursuant to Act of 1993—Steel Tank Institute Unified Abrasive Manufacturers section 6(a) of the Act. The Department Association (‘‘UAMA’’) has filed written of Justice published a notice in the Notice is hereby given that, on notifications simultaneously with the Federal Register pursuant to Section September 16, 2004, pursuant to section Attorney General and the Federal Trade

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Commission disclosing (1) the name and is: Video Electronics Standards (ANSI) as an Accredited Standards principal place of business of the Association, Milpitas, CA. The nature Developing Organization (SDO). standards development organization and scope of VESA’s standards Dorothy B. Fountain, and (2) the nature and scope of its development activities are: To facilitate Deputy Director of Operations, Antitrust standards development activities. The and promote personal computer notifications were filed for the purpose Division. graphics through improved graphics [FR Doc. 04–25870 Filed 11–19–04; 8:45 am] of invoking the Act’s provisions limiting standards for the benefit of the end user; BILLING CODE 4410–11–M the recovery of antitrust plaintiffs to to support and set industry-wide actual damages under specified interface standards for the personal circumstances. computer, workstation and computing Pursuant to section 6(b) of the Act, the DEPARTMENT OF JUSTICE name and principal place of business of environments; and to promote and Drug Enforcement Administration the standards development organization develop timely, relevant, open is: Unified Abrasive Manufacturers standards for the display and display Association, Cleveland, OH. The nature interface industry, ensuring [Docket Nos. 01–12; 01–13] and scope of UAMA’s standards interoperability and encouraging development activities are: UAMA acts innovation and market growth. Indace, Inc., c/o Seegott, Inc.; Malladi, Inc.; Suspension of Shipments as secretariat for two ANSI accredited Dorothy B. Fountain, standards committees which develop (1) Deputy Director of Operations, Antitrust On January 25, 2001, the then- specifications for safety in the use of Administrator of the Drug Enforcement bonded, coated and loose abrasives, Division. [FR Doc. 04–25843 Filed 11–19–04; 8:45 am] Administration (DEA) issued an Order excluding natural sandstones, including to Suspend Shipment to Indace, Inc., BILLING CODE 4410–11–M safety requirements for abrasive c/o Seegot, Inc. (Indace) of Elgin, products, abrasive machines and Illinois, notifying it that pursuant to 21 accessories, and requirements for the DEPARTMENT OF JUSTICE U.S.C. 971, DEA had ordered the proper storage, handling and mounting suspension of a shipment of 3,000 of abrasive products; and (2) Antitrust Division kilograms of ephedrine hydrochloride, a identification and dimensional listed chemical, from India into the standards and standard test methods for Notice Pursuant to the National United States. Indace indicated in its bonded, coated and loose abrasive in the Cooperative Research and Production request for importation that the listed natural and manufactured categories. Act of 1993—Window & Door chemical was intended for further Dorothy B. Fountain, Manufacturers Association shipment to PDK Laboratories, Inc. Deputy Director of Operations, Antitrust (PDK) of Hauppage, New York. The Division. Notice is hereby given that, on Order to Suspend Shipment stated that [FR Doc. 04–25859 Filed 11–19–04; 8:45 am] September 21, 2004, pursuant to section DEA concluded that the listed chemical BILLING CODE 4410–11–M 6(a) of the National Cooperative may be diverted to the clandestine Research and Production Act of 1993, manufacture of a controlled substance 15 U.S.C. 4301 et seq. (‘‘the Act’’), based upon the appearance of products DEPARTMENT OF JUSTICE Window & Door Manufacturers manufactured from prior imports of Association (‘‘WDMA’’) has filed ephedrine and pseudoephedrine Antitrust Division destined for PDK at illicit criminal sites, written notifications simultaneously including methamphetamine with the Attorney General and the Notice Pursuant to the National clandestine laboratories and dumpsites Cooperative Research and Production Federal Trade Commission disclosing throughout the United States. Act of 1993—Video Electronics (1) the name and principle place of On January 26, 2001, the then- Standards Association business of the standards development Administrator of DEA issued an Order organization and (2) the nature and Notice is hereby given that, on to Suspend Shipment to Malladi, Inc. scope of its standards development September 20, 2004, pursuant to section (Malladi) of Edison, New Jersey, 6(a) of the National Cooperative activities. The notifications were filed notifying it that pursuant to 21 U.S.C. Research and Production Act of 1993, for the purpose of invoking the Act’s 971, DEA had ordered the suspension of 15 U.S.C. 4301 et seq. (‘‘the Act’’), Video provision limiting the recovery of a shipment of 3,000 kilograms of Electronics Standards Association antitrust plaintiffs to actual damages ephedrine hydrochloride, a listed (‘‘VESA’’) has filed written notifications under specified circumstances. chemical, from India into the United simultaneously with the Attorney Pursuant to section 6(b) of the Act, the States. Malladi also had indicated in its General and the Federal Trade name and principal place of business of request for importation that the listed Commission disclosing (1) the name and the standards development organization chemical was intended for further principal place of business of the is: Window & Door Manufacturers shipment of PDK and the Order to standards development organization Association, Des Plaines, IL. The nature Suspend Shipment similarly stated that and (2) the nature and scope of its and scope of WDMA’s standards DEA had concluded the listed chemical standards development activities. The development activities are: WDMA may be diverted to the clandestine notifications were filed for the purpose develops voluntary consensus industry manufacture of a controlled substance, based upon the appearance of products of invoking the Act’s provisions limiting standards pertaining to the design and manufactured from prior imports of the recovery of antitrust plaintiffs to manufacture of products, and the actual damages under specified ephedrine and pseudoephedrine components of the products, of the circumstances. destined for PDK at illicit criminal sites, Pursuant to section 6(b) of the Act, the window, skylight and door industry. including methamphetamine name and principal place of business of WDMA is currently recognized by the clandestine laboratories and dumpsites the standards development organization American National Standards Institute throughout the United States.

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On February 8, 2001, PDK requested Administrator rejected the ALJ’s four occasions by failing to file the required a hearing in both matters, asserting interpretation of 971, finding: notifications of its shipments to Sun Labs. The totality of the circumstances therefore standing as a Respondent pursuant to The application of 971 is not limited to the the ruling in PDK Laboratories, Inc. v. supports the Government’s assertion that the imported form of the listed chemical. The list chemicals sought to be imported and Reno, et al., 134 F.Supp.2d 24 (D.D.C. Deputy Administrator concludes that the distributed to PDK may be diverted and 2001). DEA complied with the District provisions of 971 apply to regulated furthermore that the Suspension Orders were Court’s ruling and both matters were transactions involving listed chemicals proper and should be sustained, Mediplas, 67 regardless of imported or exported form. i.e., docketed before Administrative Law FR at 41,264. The fact that PDK products bulk of finished products. The Deputy Judge (ALJ) Gail A. Randall. containing ephedrine and pseudoephedrine Administrator further concludes the have been repeatedly found at the site of On March 8, 2001, the ALJ issued an provisions of 971 apply to finished products clandestine methamphetamine laboratories order consolidating both matters for subsequently manufactured from bulk hearing purposes. Neither Indace nor imported list chemicals. and dump sites is a significant indicator that Malladi requested a hearing in these these products may continue to be diverted Id., 67 FR at 77806. to such illicit activities. matters. Following prehearing The then-Deputy Administrator * * * The Deputy Administrator finds procedures, a hearing was held in agreed with the ALJ that the evidence that there was sufficient evidence at the time Arlington, Virginia, on March 26–30, did not show, by a preponderance of the of the hearing to support DEA’s contention April 5–6, April 11–13 and April 16–17, evidence, a violation by PDK of its that the chemicals may be diverted. 2001. At the hearing, PDK and the obligation to report suspicious sales Mediplas, 67 FR at 41260–41261 * * * Government called witnesses to testify under 21 CFR 1310.05(a)(1) in Therefore, the Deputy Administrator and introduced documentary evidence. concludes that the suspensions set forth in connection with certain mail order sales the January 25 and 26, 2001 Orders to After the hearing, both parties filed of 25 mg. ephedrine products which proposed findings of fact, conclusions of Suspend Shipments of ephedrine occurred in 1995 and 1996. The then- hydrochloride issued to Indace and Malladi law, and argument. Deputy Administrator further noted were justified. On April 5, 2002, the ALJ issued a there had been testimony presented Indace/Malladi, supra, 67 FR at 77809. consolidated Recommended Rulings, concerning ‘‘traditional’’ versus ‘‘non- Findings of Fact, Conclusions of Law, PDK filed a timely petition for review traditional’’ markets for List I chemical of the final order pursuant to 21 U.S.C. and Decision of the Administrative Law products. However, in accord with his Judge (hereinafter ‘‘Recommendation’’ 877 with the United States Court of previous holding on this subject, he Appeals for the District of Columbia or ‘‘Opinion and Recommended found the probative weight of the Ruling’’) recommending that both Circuit and on March 26, 2004, the evidence introduced in this case to be Court issued its opinion in PDK suspensions be lifted and the exporters minimal, without ‘‘some form of further allowed to complete the shipments. On Laboratories Inc. v. U.S. Drug extrinsic evidence to support these Enforcement Administration (PDK April 25, 2002, the Government filed arguments.’’ Indace/Malladi, supra, 67 Exceptions to the ALJ’s Labs), 362 F.3d 786 (D.C. Cir. 2004). FR at 77808, quoting Mediplas Consistent with the District Court’s Recommendation. In response, on May Innovations, (Mediplas) 67 FR 41256, 21, 2002, PDK filed its Response to the decision in PDK Labs Inc. v. Reno, 41264 (2002). supra, 134 F. Supp. at 31, the Court of Exceptions Filed by the Government. However, relying primarily on the Subsequently, on June 5, 2002, the ALJ Appeal concluded PDK had both issuance of a series of Warning Letters prudential and Article III standing to transmitted the record of these by DEA between 1999 and 2001, proceedings to the Deputy challenge the suspension orders under advising PDK that its ephedrine and the facts and circumstances of this cas. Administrator for final action pursuant pseudoephedrine products had been to 21 CFR 1313.57. PDK Labs, supra, 363 F.3d at 791–794; found at illicit methamphetamine see also PDK Labs Inc. v. Ashcroft, ll On December 13, 2002, pursuant to 21 manufacturing sites, the then-Deputy F.Supp.2d ll, 2004 WL 1924930, 4 CFR 1313.57, then-Deputy Administrator concluded sufficient (D.D.C., decided August 27, 2004). Administrator John B. Brown III, issued evidence supported DEA’s contention The Court of Appeal also ruled that his final order regarding the Indace and that the chemicals may be diverted. the final order of December 13, 2002, Malladi suspensions of shipments. The Secondarily, the then-Deputy should be set aside and remanded to then-Deputy Administrator rejected the Administrator relied on PDK’s failure to DEA for a new final order. The entire Opinion and Recommended Ruling of report as exports, pursuant to 21 CFR Court concluded the then-Deputy the Administrative Law Judge. That 1313.21(a), four shipments of ephedrine Administrator had relied in significant final order was subsequently published sold to Sun Labs of Canada between part on PDK’s failure to file export in the Federal Register on December 19, 1994 and 1995, which had been notifications regarding the New York 2002. See Indace, Inc. c/o Segott, Inc.; delivered within the United States. deliveries of tablets containing Malladi, Inc. (Indace/Malladi), 67 FR In making his ruling the then-Deputy ephedrine to Sun Labs of Canada. 77805 (2002). Administrator applied the ‘‘totality of However, the final order failed to In the ALJ’s Opinion and the circumstances’’ test used in distinguish or explain its apparent Recommended Ruling, she interpreted Mediplas, stating: departure from the position taken by the the terms‘‘listed chemical’’ and ‘‘the The Deputy Administrator notes the record agency in Alfred Khalily, Inc. (Khalily), chemical,’’ as set forth in 21 U.S.C. is replete with PDK’s contentions that it has 64 FR 31289 (DEA June 10, 1999). PDK 971(c)(1) (hereafter ‘‘971’’), to be limited worked hard to evaluate its activities and to Labs, 363 F.3d at 798–799. to the actual material to be imported, in cooperate with DEA in stemming diversion. this case, bulk ephedrine. In the event However, the record shows that diversion of In applying his ‘totality of the the Deputy Administrator disagreed PDK products has continued to occur, and circumstances’ approach to determining whether the listed chemical may be diverted, with that interpretation, the ALJ made that, based upon the Warning Letters received, PDK should have known its the Deputy Administrator ruled that PDK had alternative findings and remedial actions were insufficient to stem the violated an export notification regulation recommendations that the Government diversion of its List I chemical products. when it made four deliveries of tablets had not satisfied the ‘‘may be diverted’’ Moreover, the record shows evidence that containing ephedrine between 1994 and 1995 portion of 971. The then-Deputy PDK violated export regulations on at least to Sun Labs of Canada in New York. 67 FR

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at 77807–08. The Deputy Administrator did control that subject. When § 971(c)(1) states right to a hearing pursuant to 21 CFR not explain how alleged export violations that DEA may stop the importation if ‘the 1313.54. were relevant to determining whether PDK’s chemical may be diverted to the clandestine It is now the law of the case that in finished products might be used in manufacture of a controlled substance,’ one reference to this proceeding, PDK is ‘‘a methamphetamine laboratories. In any event, might ask: ‘Diverted from what?’ In context, regulated person to whom an order the Deputy Administrator failed to a reading as plausible as the Deputy distinguish, indeed did not mention, Alfred Administrator’s is that Congress meant only applies under 21 U.S.C. 971(c)(2) with Khalily, Inc., 64 FR 31389 (DEA June 10, to cover diversions during importation. On respect to the suspension of List I 1999), which held that a company selling List this view, § 971(c)(1) would authorize chemicals to be imported on PDK’s I chemicals to a foreign buyer but delivering suspension orders only if the imported behalf.’’ PDK Laboratories Inc. v. Reno, the chemicals to the buyer in the United chemical might not reach its intended et al., supra, 134 F.Supp. at 31; PDK States ‘was not responsible for filing any destination—the legitimate, domestic Labs, supra, 362 F.3d at 792–95. export documentation.’ Id. at 31,293 n.2. manufacturer. Accordingly, the District Court and the PDK Labs, 362 F.3d at 788. PDK Labs, supra, 362 F.3d at 796–97 Court of Appeal have created a rule for In addition to this ground for remand, (italics in original). this case.1 a majority of the Court also concluded The majority further concluded, On January 25 and 26, 2001, DEA issued the Orders to Suspend Shipment that remand was necessary for DEA to In short, we do not agree that the meaning interpret 971(c)(1)’s provision to Indace and Malladi which are the of § 971(c)(1) is as plain as it says it is. It may subject of these proceedings. The Orders authorizing DEA to ‘‘order the be that here, as in other cases, the strict suspension of any importation * * * of dichotomy between clarity and ambiguity is asserted as a basis for suspension that a listed chemical on the ground that the artificial, that what we have here is a the ephedrine to be imported may be chemical may be diverted to the continuum, a probability of meaning. In diverted to the illicit production of a clandestine manufacture of a controlled precisely those kinds of cases, it is controlled substance. They recited that substance.’’ See PDK Labs, v. DEA, 362 incumbent upon the agency not to rest DEA investigations revealed that simply on its parsing of the statutory products produced from prior imports F.3d at 794–98. One judge issued a language. It must bring its experience and concurring opinion which, while of ephedrine and pseudoephedrine expertise to bear in light of competing destined for PDK had appeared at agreeing remand was appropriate for the interests at stake. See Chevron v. NRDC, 467 failure to distinguish Khalily, disagreed clandestine methamphetamine U.S. at 865–66, 104 S. Ct. at 2792–93. But it laboratories in the United States. The with the majority as to the need for DEA has not done so here and at this stage it is Orders also indicated that traffickers to provide further interpretation of not for the court ‘to choose between utilize ephedrine and pseudoephedrine section 971(c)(1). Id. at 799–810 competing meanings.’ [Citations]. in the illicit production of (Roberts, J., conc.). However, the PDK Labs, supra, 362 F.3d at 797–98. methamphetamine, that PDK majority analyzed the crux of the case With this guidance in mind, the manufactures and distributes over-the- as follows: Deputy Administrator has considered counter drug products containing the The main interpretive question in the case the record in its entirety, along with the listed chemicals pseudoephedrine and is whether, as the suspension orders assume, Court of Appeal’s ruling and, pursuant ephedrine, that these products are ‘the chemical may be diverted’ includes the to 21 CFR 1313.57, hereby issues her distributed in strength, quantity and prospect that PDK’s ephedrine-containing final order regarding the Indace and pills in retail stores will be sold to, or packaging unlike the traditional market Malladi suspension of shipments, based (referred to by DEA as ‘‘gray market’’ shoplifted by, people who will then use the upon findings of fact and conclusions of pills to produce methamphetamine [fn]. The products), and that these products are Deputy Administrator concluded that the law as hereinafter set forth. The Deputy generally distributed and sold through statute plainly meant what the suspension Administrator is issuing one final order non-traditional retail outlets. The orders assumed. He reached this conclusion regarding both suspension cases since Orders to Suspend Shipment also without mentioning any policy the same findings of fact and indicated that DEA data regarding considerations or other means within the conclusions of law apply to both clandestine laboratory seizures noted agency’s expertise. Apparently for this suspensions. Except as hereinafter that gray market products are reason, DEA neither invoked Chevron v. noted, the Deputy Administrator rejects, NRDC, U.S. 837, 843–45 (1984), nor asks us predominantly encountered in in its entirety, the Opinion and clandestine methamphetamine to give special deference to the Deputy Recommended Ruling of the Administrator’s judgment about the meaning laboratories. of the provision. Administrative Law Judge. Based upon The issue before the Deputy her review of the record in this matter, Administrator is whether or not the PDK Labs, supra, 362 F.3d at 794. including all submissions of both record as a whole establishes by a The majority viewed the then-Deputy parties, and exceptions as filed, the preponderance of the evidence that DEA Administrator’s final order as premised Deputy Administrator adopts such should suspend the two shipments of on an erroneous belief that the statute findings of fact and conclusions of law ephedrine hydrochloride destined to be was ‘‘clear’’ and 971(c)(1)’s meaning as hereinafter follow. shipped from India to the United States, ‘‘plain.’’ Id., at 794–95. It held as The Deputy Administrator finds that pursuant to 21 U.S.C. 971(c)(1) and 21 follows: both Indace and Malladi are registered CFR 1313.41(a). We do not agree that the language of with DEA as importers of listed § 971(c)(1) plainly covers the diversion of chemicals. Both importers were advised 1 However, as the Court of Appeal indicated, ‘‘in finished products, or drug products. That a in the Orders to Suspend Shipment of holding that PDK has prudential standing, we have statute is susceptible of one construction their right to request a hearing. Neither avoided placing a judicial interpretation on does not render its meaning plain if it is also § 971(c)(2), the hearing provision.’’ PDK Labs, importer chose to do so. Furthermore, supra, 362 F.3d at 794. The Deputy Administrator susceptible of another plausible construction, the record reflects that the ALJ gave as we believe this statute is. Section 971(c)(1) therefore declines to adopt a rule as DEA policy that deals with importation (and exportation) of Indace an opportunity to participate in a party in PDK’s position (i.e., a wholesale prehearing matters, but Indace did not distributor/manufacturer or a downstream customer listed chemicals. It does not regulate what a of such an entity), is entitled to a hearing under 21 drug manufacturer does with the chemical respond. Accordingly the Deputy U.S.C. 971(c)(2) as a ‘‘regulated person to whom an after receiving it; other sections of the Administrator concludes that both order applies under paragraph (1)’’ of that [Controlled Substances Act, as amended] Indace and Malladi have waived their subdivision.

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There is no evidence that the For clarification, while Daas referred increasingly began to switch to an shipments of bulk ephedrine to the ‘‘plain’’ meaning of the phrase in ephedrine process. The Chemical hydrochloride would be diverted before the criminal statute, the Deputy Diversion and Trafficking Act of 1988 reaching PDK, the intended recipient Administrator does not view Dass as (CDTA), Pub. L. 100–690, established within the United States. Thus, if the mandating the adopted interpretation of the basic scheme of chemical regulation ALJ’s interpretation of the terms ‘‘listed 971(c)(1). However, as noted by the and imposed reporting and record chemical’’ and ‘‘the chemical’’ as set majority in PDK Labs, ‘‘There is logic in keeping and import/export notification forth in 971(c)(1) was correct, the the Ninth Circuit’s reasoning, and in the requirements on certain regulated suspensions could not be sustained. Deputy Administrator’s reliance on the transactions involving chemicals, However, the Deputy Administrator decision. When Congress uses the same including bulk ephedrine. However, at rejects the ALJ’s interpretation of these word in different parts of a statute, it the time, listed chemicals contained in critical terms and concludes they usually means the same thing. See drug products were exempted from the encompass more than just the imported Sullivan v. Stroop, 496 U.S. 478, 484 reporting and record keeping provisions or exported form of the listed chemical, (1990); Energy Research Found v. of the CDTA. in this case bulk ephedrine Defense Nuclear Safety Bd., 917 F.2d In response to these controls, illicit hydrochloride. Instead, the Deputy 581, 583 (D.C. Cir. 1990).’’ PDK Labs, methamphetamine laboratories began to Administrator finds the applicable 362 F.3d at 796. switch to targeted ‘‘single entity’’ provisions of 971 apply to regulated However, the majority went on to note ephedrine as a raw material. The transactions involving listed chemicals, that logic is only one component of Domestic Chemical Diversion Control regardless of their imported or exported statutory interpretation. The words of Act of 1993 (DCDCA), Pub. L. 103–200, form, i.e., bulk or finished products. The the statute should be ‘‘read in context, was then crafted to close the ephedrine Deputy Administrator further concludes the statute’s place in ‘the overall ‘‘loophole’’ by removing the exemption the terms at issue also apply to finished scheme’ should be considered, and the for ‘‘single entity’’ ephedrine products, products subsequently manufactured problem Congress sought to solve and lowering its sales threshold. In from bulk imported/exported list should be taken into account addition, the DCDCA initiated a chemicals. [Citations].’’ PDK Labs, 362 F.3d at 797. registration requirement for handlers of The Deputy Administrator believes The Deputy Administrator finds that List I chemicals. that the term ‘‘listed chemical,’’ as used based upon the evidence in the record, Subsequently, illicit laboratories in 971(c)(1) should be construed broadly the listed chemicals ephedrine and shifted to pseudoephedrine and in light of that term’s use in other parts pseudoephedrine are marketed in combination ephedrine drug products as of the same statute, which was enacted prescription and over-the-counter drug sources of raw material, prompting the passage of the Comprehensive by Congress in 1988. In the previous products which have legitimate Methamphetamine Control Act of 1996 final order, the then-Deputy therapeutic uses as a bronchodilator and (MCA), Pub. L. 104–237, to establish Administrator cited the Ninth Court of nasal decongestant, respectively. additional controls and quantity Appeal’s decision in United States v. The Deputy Administrator also finds thresholds for reporting transactions Daas (Dass), 198 F.3d 1167 (9th Cir. that over the past decades, DEA has regarding listed chemicals. The MCA 1999). See, Indace/Malladi, 67 FR at been engaged in enforcement and also established a Suspicious Orders 77806. In that case, the defendant, who regulatory activity to control the large- Task Force, in part to assist in alerting had been convicted under then-21 scale diversion of chemicals, including the chemical industry to the many U.S.C. 841(d)(2) 2 for distributing a ephedrine and pseudoephedrine, into the illicit manufacture of controlled devices used by individuals who seek to listed chemical, argued the evidence divert large quantities of listed was insufficient to support his substances. The controlled substance methamphetamine is easily produced in chemicals and listed chemical products conviction because that statute, which into the illicit manufacture of controlled was enacted at the same time as clandestine laboratories using either pseudoephedrine or ephedrine. The substances. 971(c)(1), only criminalized the Thus, there has been a series of distribution of pure ephedrine or process of manufacturing methamphetamine is easily legislative enactments intended to pseudoephedrine, not a chemical address the problems of illicit drugs, mixture containing these chemicals. accomplished with minimal equipment and readily available chemical supplies. including methamphetamine. As illicit The Ninth Circuit rejected that manufacturers altered methods of argument, holding that ‘‘§ 841(d)(2) The Controlled Substances Act has always prohibited the illicit (i.e., production and choices of precursor encompasses such mixtures as Mini chemicals, Congress enacted legislation Thins and Pseudo Thins.’’ Dass, 198 without a DEA registration) manufacture of controlled substances. The earliest intended in significant part to brunt the F.3d at 1174. In particular, the Ninth efforts of criminals engaged in operating Circuit noted that the ephedrine and illicit methamphetamine laboratories used the freely available chemical clandestine methamphetamine pseudoephedrine in Mini Thins and laboratories and to thwart or impede Pseudo Thins ‘‘retain a separate phenyl-2-propanone, also known as phenylacetone or P2P, to produce their obtaining the precursor chemicals existence,’’ (quoting Chapman v. United required to manufacture controlled States, 500 U.S. 453, 461 (1991) and, methamphetamine, until that substance was itself scheduled as a controlled substances. therefore, that ‘‘[t]he ephedrine and The Deputy Administrator finds substance. In the 1980’s pseudoephedrine in Mini Thins and nothing in the legislative history of methamphetamine laboratories Pseudo Thins are plainly ‘listed these enactments compels the narrow chemicals’ within the meaning of interpretation of 971(c)(1) adopted by 3 California between early 1996 and early 1997. Daas, § 841(d)(2).’’ Id., at 1175. supra, 198 F.3d at 1171–72. During this period, the ALJ in her Opinion and PDK was manufacturing the Mini-Thin products Recommended Ruling. Indeed, that 2 Now 21 U.S.C. 841(c)(2). and distributing it exclusively through BDI. In 1998, history suggests Congress was very 3 The Mini-Thin ephedrine based product after DEA executed a Federal search warrant on BDI involved in Daas, had been obtained by the and sent a Warning Letter to PDK concerning BDI much concerned with the diversion of defendant from Body Dynamics Incorporated (BDI) labeled products being found at illicit sites, PDK finished drug products containing and sold to the All-Rite Market of Marysville, terminated its contract with BDI. ephedrine. See H.R. Rep. No. 103–

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379(I), at 6 (1993), reprinted in 1993 course of commerce, diverted to the interpreting ‘‘listed chemical’’ for U.S.C.C.A.N. 2983 [‘‘This provision illicit production of methamphetamine. purposes of 21 U.S.C. 841(d)(2) (now removes the exemption * * * for drugs If Congress wanted to make an (c)(2)), discussed earlier. See United containing ephedrine * * * because express distinction between a bulk States v. Daas, supra, 198 F.3d at 1174– these products are being diverted in listed chemical and a finished product 75. significant quantities for the illicit in section 971(c), it could have done so. While Congress may not have been as manufacture of methamphetamine’’). As For example, 21 U.S.C. 958(i) is the concerned about the diversion of discussed in the initial final order, statute permitting registered ephedrine-containing products when it when the then-Acting Deputy manufacturers to challenge an enacted section 971 as it was in the Administrator made a report to the application for a DEA registration that years that followed, as noted in the House of Representatives Committee seeks to import bulk controlled concurring opinion, ‘‘ ‘the fact that a considering the DCDCA, it indicated the substances. That provision explicitly statute can be applied in situations not legislation was intended, part, to close states that it is limited to bulk expressly anticipated by Congress does a ‘‘loophole’’ for those who divert manufacturers. Congress could have not demonstrate ambiguity. It ephedrine drug products. Id., at 5, 8 done likewise, but it did not make such demonstrates breadth.’ PGA Tour, Inc. (1993). a distinction between bulk and finished v. Martin, 532 U.S. 661, 689 (2001) As noted by the concurring opinion in form list chemicals when it crafted (internal quotation marks and citations PDK Labs, the DEA Acting section 971. omitted); accord Consumer Elecs. Ass’n, Administrator’s report to the House The record reflects that once PDK 347 F.3d [291] at 298.’’ PDK Labs, 362 explained that ‘‘the so-called ‘legal drug receives its bulk ephedrine, it combines at 802–03. exemption’ which currently exempts the ephedrine with the decongestant Were the ALJ’s strict interpretation of drug products approved for marketing guaifenesin and binders to form a listed section 971(c)(1) given effect, as a policy under the Food, Drug and Cosmetic Act chemical product. Throughout this matter it would also create an arbitrary from the regulatory provisions of our process, the chemical composition of dual standard. For example, if a listed chemical control law had become a the ephedrine is unaltered. Illicit chemical is imported in bulk form and ‘loophole’ exploited by clandestine methamphetamine manufacturers then if it is a chemical that is not or will not laboratory operators. H.R. Rep. No. 103– purchase or steal the tablets and break be converted to a drug product, then 379, at 8. It is that loophole that the the finished product down to its under 971(c)(1), that chemical may be DCDCA and CMCA revoked for drugs component parts. This, in effect, yields suspended based upon its diversion containing ephedrine, see 21 U.S.C. the same pure ephedrine that was during any time in its distribution flow, 802(39)(A)(iv)(I)(aa).’’ PDK Labs, 362 imported for PDK. In this manner, the i.e., from the initial importation F.3d at 803 (Roberts, J., conc.) (internal listed chemical itself—ephedrine—is downstream to the last retail handler. quotation marks omitted). diverted to methamphetamine Under the ALJ’s interpretation, However, the majority in PDK Labs manufacturing. As the concurring however, the suspension statute would observed that the 1993 House Report opinion described the process in PDK be of limited use for those bulk came out five years after the 1988 Labs, products, such as ephedrine, that could enactment of 971(c)(1), that the DCDCA be finished into an over-the-counter did not specifically amend section 971 At the time of its ‘diversion,’ the ephedrine drug product somewhere along the and the ‘‘loophole’’ being closed extracted from PDK Mini-Two Way Action is distribution chain. In other words, as a just as much a listed chemical as when it was concerned record keeping and reporting transported across the high seas in bulk form. matter of law, based solely upon the requirements. PDK Labs, 362 F.3d at Thus, at least insofar as a listed chemical is ALJ’s statutory interpretation, once the 794–95. readily extractable from its finished drug imported bulk ephedrine is converted Nevertheless, the Deputy product, the text of section 971(c) treats into a drug product at some point in the Administrator views the totality of these transactions (including a ‘diversion’) in that distribution chain, it is no longer subject progressive enactments as part of an drug as transactions in the listed chemical it to being suspended pursuant to section overall continuum of Congress’ intent to contains. 971(c). provide DEA the regulatory means to This interpretation comports with common Such an artificial distinction between monitor the domestic production, sense. If a methamphetamine manufacturer over-the-counter drug products and steals, for the purpose of making manufacture and distribution of List I methamphetamine, a bottle containing pure other chemicals that will not be chemicals and prevent their illicit use in ephedrine, or pure ephedrine dissolved in converted into any finished drug manufacturing methamphetamine, water, or a bottle containing 50 ephedrine product is not tenable and is certainly including the ability to prevent the and 50 guaifenesin pills, we would not hear inconsistent with the criminal penalty importation of bulk chemicals that will an argument that he did not divert a listed provisions of the law involving imports. be manufactured into chemical products chemical because he also diverted a bottle, For example, if DEA had facts to show after arriving into the United States and some water, or some guaifensin. The that an importer had reasonable cause to then diverted throughout the country to presence of packaging materials or other believe that a listed chemical was to be thousands of clandestine laboratories. extraneous items does not vitiate the imported, tableted, and distributed to a existence of the listed chemical. Here, a The Deputy Administrator does not bottle of PDK Mini Two-Way Action contains clandestine laboratory, then the view the relevant enactments of pills each consisting of 25 mg of ephedrine importer would be subject to a lengthy Congress as expressing any clear intent and 200 mg of guaifensin and binders. For term of imprisonment under 21 U.S.C. that the term ‘‘listed chemical,’’ as used purposes of Section 971(c), the decongestant 960(d)(3). However, even if DEA knew in 971(c)(1 ), was limited to the and the binders are extraneous materials, no those same facts, under the ALJ’s particular chemical being imported or more relevant to the analysis than the bottles standard, the import shipment could not that DEA, as the agency entrusted with and boxes in which the pills are packaged. be suspended. administering that provision, could not PDK Labs, 362 F.3d at 800–801 (Roberts, For consideration only of the policy consider and take action to prevent the J., conc.). issues involved in interpreting 971(c)(1), import of bulk listed chemicals which The Deputy Administrator agrees with as opposed to the sufficiency of the were to be manufactured into finished this analogy and finds that it comports evidence to show that in this particular products and then, in the downstream with that of the Ninth Circuit in case the List I chemical ‘‘may be

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diverted,’’ (inasmuch as no additional because section 971 (similar to many predecessor to 971(c)(1)’s terms ‘‘listed extrinsic evidence was introduced at the other statutes under the Controlled chemical’’ and ‘‘the chemical’’ and hearing regarding the gray market; see Substances Act) is remedial and since it holds they apply to regulated Mediplas, supra, 67 FR at 41264; was passed to protect the public transactions involving listed chemicals Indace/Malladi, supra, 67 FR 77808), a interest, it should be construed broadly regardless of imported or exported form, series of cases decided after this matter to effectuate its purpose. See Jefferson i.e., bulk or finished products and that was litigated and/or originally acted County Pharmaceutical Association v. the provisions of 971 apply to finished upon by the then-Deputy Administrator, Abbott Laboratories et al., 460 U.S. 150, products subsequently manufactured illustrate the problems DEA, state 159 (1983) (holding that the Robinson- from bulk imported or exported listed regulators and law enforcement agencies Patman Act had to be construed chemicals. throughout the country currently face as liberally and broadly to effectuate its The Deputy Administrator does not a result of the proliferation of purpose, which was to prevent anti-trust view this interpretation as managed by clandestine laboratories—using price discrimination); Federal Trade the ‘‘plain language’’ of the 971(c)(1). precursor chemicals, obtained by theft Commission v. Mandel Brothers, Inc., Instead, based on its experience and or purchase of listed chemical products 359 U.S. 385, 389 (1959) (holding that expertise, DEA concludes this is a which have often been made from bulk the Federal Trade Commission’s reasonable interpretation which is chemicals imported into the United interpretation of a retail labeling act consistent with the intent and language States and then distributed to would be upheld because the legislation of the statute. It is also compatible with convenience stores and gas stations as a was remedial, i.e., it was enacted to an in furtherance of the will of Congress part of the grey market. protect consumers). in enacting the overall series of drug See, e.g., OTC Distribution Co., 68 FR The Deputy Administrator therefore control laws serving to deter the illicit 70538, 70539 (2003) (‘‘Pseudoephedrine concludes that the interpretation manufacturing, distribution and use of bulk powder is usually imported from adopted in this final order is consistent controlled substances and in China or India, tableted by DEA- with the words of the statute, its place furtherance of DEA’s mission. registered manufacturers, distributed to in the overall drug enforcement Accordingly, should this final order be various distributors, wholesalers and legislative scheme and the problems the subject of judicial scrutiny, it is then to retail outlets. Of DEA’s Congress was attempting to address. requested that it be afforded appropriate approximately 3,500 chemical In adopting her limited interpretation deference. See, Chevron v. NRDC, supra, registrants in 2000, over 3,100 were of ‘‘listed chemical’’ under 971(c)(1), the 467 U.S. at 865–66; PDK Labs, supra, distributors. While illegal diversion can ALJ cited three prior DEA cases in 362 F.3d at 794. occur at any point in the distribution support of her position: Suspension of The ALJ also disagreed with the chain, it usually occurs after the Shipment Cases,4 65 FR 51333 (2002); Government’s interpretation of 971(c), manufacturer has sold its product to a Yi Heng Enterprises Dev. Co., 64 FR finding it would create a form of ‘‘strick distributor.’’; see also Branex 2234 (1999); and Neil Laboratories, Inc., liability’’ for the importers in this case. Incorporated, 69 FR 8682, 8690–93 64 FR 30063 (1999). The Deputy As discussed previously, although the (2004); Xtreme Enterprises, Inc., 67 FR Administrator finds these cases readily suspension was directed against the 76195, 76196–97 (2002); Sinbad distinguishable, as they did not involve importers, the party in interest in this Distributing, 67 FR 10232, 10233–34 or discuss the question of chemical proceeding is the manufacturer- (2002). For additional background as to identity, which is at issue here. Instead, customer of the importers. It is the the diversion of List I over-the-counter each of these cases dealt with other conduct of that party, PDK, and its chemical products after distribution to listed chemicals which were distributed customers, and the fact that the product retail establishments as it bears on in their original state and, unlike the which it manufactured and distributed DEA’s interpretation of 971(c)(1), see PDK-bound imports, were not destined ended up in clandestine drug also DEA’s Proposed Rules on Security to be subjected to the introduction of laboratories, that forms the basis of the Requirements for Handlers of fillers and coatings in order to transform Government’s contention that the Pseudoephedrine, Ephedrine, and them into over-the-counter drug ephedrine ‘‘may be diverted.’’ Phenylpropanolamine, 69 FR 45616, products after importation and then The then-Deputy Administrator 45617 (2004). placed into commerce. concluded in Mediplas, supra, 67 FR In sum, DEA and other Federal, State While remanding, the Court of Appeal 41,256, published subsequent to the and local law enforcement agencies are implicitly suggested that the then- ALJ’s recommendation in the instant faced with a growing problem of listed Deputy Administrator’s interpretation of case, that whether a regulated person chemicals being imported into the 971(c)(1)’s ‘‘listed chemical’’ was foresaw or knew of diversion was not a United States in bulk form, which are permissible. However, in the majority’s determining factor as to whether the then converted into List I chemical view it was arrived at under the listed chemical ‘‘may be diverted.’’ products, distributed to the grey market erroneous impression that the statute While knowledge of a regulated person, and diverted to illicit production of ‘‘plainly meant what the suspending or its party in interest customer, may be methamphetamine. Section 971(c)(1) is orders assumed.’’ PDK Labs, 362 F.3d at relevant in a totality of the considered by DEA to be a significant 794. circumstances analysis, the ultimate component of the regulatory arsenal Disavowed of that view by the issue is whether the listed chemical given it by Congress to combat this majority’s guidance, based on the being imported into the United States immense and growing public problem. foregoing, the Deputy Administrator re- ‘‘may be diverted’’ and then, whether or If the language of a law is ambiguous adopts the interpretation given by her not the Deputy Administrator should and there exists two competing exercise her discretion to sustain the reasonable interpretations and the 4 January 17, 1998, Shipment of 10,000 Kilograms suspension of shipment. agency interpretation, which best suits of Potassium Permanganate, December 16, 1997 The focus of the factual inquiry is the its goals, is consistent with the intent of Shipment of 20,000 Kilograms of Potassium ultimate destination of the listed Permanganate and November 17, 1997, Shipment of Congress, that interpretation should be 20,000 Kilograms of Potassium Permanganate; chemical, not the culpability of the granted great deference. Such a Suspension of Shipments (collectively referred to as regulated person. Indeed section 971(1), construct would be especially true here, Suspension of Shipment Cases). by its terms, makes no mention of a

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showing of intent, recklessness, clear. DEA need not issue an array of Tabs’’ product were found on June 25, negligence, knowledge, or any type of regulations to anticipate every situation 1999, in connection with the mens rea. Rather the plain language of where a List I chemical may be diverted clandestine manufacture of controlled the provision focuses solely upon and the importer/exporter is entitled to substances. whether the chemical ‘‘may be an ‘‘agency hearing on the record in On February 17, 2000, DEA issued a diverted.’’ Any contention that the ‘‘may accordance with subchapter 5 of Title Warning Letter to PDK indicating that be diverted’’ standard should be 5.’’ 21 U.S.C. 971(c)(2). The statute 48 bottles of PDK ‘‘Mini Pseudo’’ interpreted to contain a culpability clearly envisions permitting the agency product were found on October 26, element, cannot be squared with the to proceed by adjudication. 1999, in Dooly County, Georgia; that plain language of that provision. See Further, the instant suspension orders 1564 bottles of PDK ‘‘Mini Pseudo’’ American Tobacco C. v. Patterson, 456 entail no new standards. They simply product were found on March 24, 1999, U.S. 63, 68 (1982) (‘‘As in all cases require a determination of specific facts. in San Bernardino County, in California; involving statutory construction, our Similarly, the Government’s position that 8 bottles of PDK ‘‘Mini Two Way starting point must be the language cannot be characterized as a ‘‘radical Action’’ product were found on March employed by Congress and we assume departure.’’ To the contrary, it is 23, 1999, in Detroit, Michigan; that that the legislative purpose is expressed consistent with prior rulings, 12,931 bottles of PDK ‘‘Max Brand by the ordinary meaning of the words particularly Yi Heng and Mediplas.6 Pseudo 60’s’’ product were found on used.’’ (internal quotations omitted); Applying the interpretations of February 18, 1999, in Chatsworth, United States v. Green Drugs, 905 F.2d 971(c)(1) discussed above and the California; and that 40 bottles of PDK 694,697–98 (3rd Cir. 1990) (holding that totality of the circumstances test applied ‘‘Mini Pseudo’’ product were found on strict liability may be imposed for civil in Mediplas and the initial action on February 12, 1999, in Seattle, violations of the recordkeeping this matter, the Deputy Administrator Washington, all in connection with the provisions of the CSA because ‘‘[o]ur now determines whether evidence clandestine manufacture of controlled starting point is, of course, the text of exists to support the suspensions, based substances. the statute itself, which plainly shows upon a finding that the List I chemicals On February 28, 2000, DEA issued a an absence of the scienter requirement may be diverted. Warning Letter to PDK indicating that for civil violations of the recordkeeping The Deputy Administrator finds DEA 96 bottles of PDK ‘‘Max Brand Pseudo provisions.’’).5 initiated a program intended to inform 60’s’’ product and 144 bottles of PDK While Mediplas was published after listed chemical registrants of situations ‘‘Two Way Max Brand’’ product were the ALJ issued her Opinion and when their listed chemicals products found on January 27,2000, in McCrory, Recommendation, the argument that an were discovered at illicit clandestine Arkansas; and that 13 bottles of PDK importer and, by logical extension, PDK laboratory sites. According to DEA, a ‘‘Max Brand Pseudo 60’s’’ product were as its party in interest, must have some Warning Letter program was developed found on February 14, 2000, in Dallas, degree of responsibility for the to assist registrants in identifying Texas, both in connection with the diversion, had previously been rejected products that had been diverted and so clandestine manufacture of controlled by DEA ion a transshipment case. In Yi they could decide appropriate remedial substances. Heng Enterprises Dev. Co., supra, 64 FR action. On June 26, 2000, DEA issued a 2,234, a transshipper of potassium On March 19, 1998, DEA issued a Warning Letter to PDK indicating that 1 permanganate through a U.S. port Warning Letter to PDK indicating that, bottle of PDK ‘‘Max Brand Pseudo 60’s’’ argued it had committed no violations from April 2, 1997, through December product was found on December 22, in the past when it sold listed chemical 20, 1997, PDK List I chemical products 1999, in San Dimas, California; and that to customers in Colombia. Even though were found in 51 sites in Oklahoma, 143 bottles of PDK ‘‘Max Brand Pseudo the record demonstrated the Missouri, Arkansas, Alabama, Kansas, 60’s’’ product were found on January 6, transshipper’s customers had committed California, Texas, Tennessee, Ohio, 2000, in Las Vegas, Nevada, both in numerous violations with listed Florida, Iowa, Michigan, South Dakota, connection with the clandestine chemicals purchased from the Arizona, Utah and Colorado, all in manufacture of controlled substances. transshipper, that company contended connection with the clandestine On June 6, 2000, DEA issued a that it had no control, and thus, should manufacture of controlled substances. Warning Letter to PDK indicating that 1 not be responsible for the transgressions For investigative reasons, DEA did not bottle of PDK ‘‘Two Way Max Brand’’ of its downstream customers. Yi Heng resume sending any Warning Letters to product and 2 bottles of PDK ‘‘Max unequivocally rejected this argument PDK until February 15, 2000, when it Brand Pseudo 60’s’’ product were found holding, ‘‘[t]he prior conduct of [the issued a Warning Letter indicating that on January 6, 2000, in Sparta, transshipper’s] customers * * * is during 1998–99, PDK’s ‘‘Max Brand Tennessee; that 4 bottles of PDK ‘‘Max clearly relevant in determining whether Pseudo 60’s,’’ ‘‘Mini Tabs,’’ ‘‘Max Alert Brand Pseudo 60’s’’ product were found the shipments may be diverted.’’ Id., at Pseudo,’’ ‘‘Mini Pseudo,’’ ‘‘Mini Two on May 11, 2000, in Lawrence, Kansas; 2,235. Way’’, ‘‘Mini Two Way Action’’ and and that 5 bottles of PDK ‘‘Two Way To the extent the ALJ here concluded ‘‘Mini Thins’’ products were found in Brand’’ product were found on May 19, the Government’s interpretation of ‘‘may approximately 49 sites in eleven states, 2000, in Hamilton, Alabama, all in be diverted’’ represents a ‘‘radical shift all in connection with the clandestine connection with the clandestine in policy’’ that must be accomplished manufacture of controlled substances. manufacture of controlled substances. through rulemaking, as opposed to On February 15, 2000, DEA issued a On June 8, 2000, DEA issued a adjudication, the Deputy Administer Warning Letter to PDK indicating that Warning Letter to PDK indicating that 9 disagrees. The statute’s language on this 500 bottles of PDK’s ‘‘Max Brand Mini- bottles of PDK ‘‘Max Brand Pseudo point and its meaning are sufficiently 60’s’’ product were found on May 11, 6 To the extent a future reviewer should disagree 2000, in Lawrence, Kansas; that 6 5 In 1998, Congress amended the recordkeeping with the Deputy Administrator’s reading of bottles of PDK ‘‘Max Brand Pseudo requirements of the CSA to include a negligence 971(c)(1)’s ‘‘may be diverted’’ language and 60’s’’ product were found on May 12, provision. See 21 U.S.C. 842(a)(5), (a)(10). Notably, determine it is ambiguous, the agency position however, Congress did not similarly amend section should be given due deference under Chevron, See, 2000, in Signal Mountain, Tennessee; 971(c) to include such a provision. INS v. Anibal Aguirre, 526 U.S. 415, 425 (1999). that 144 bottles of PDK ‘‘Max Brand

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Pseudo 60’s’’ product were found on bottles of PDK ‘‘Max Brand Pseudo On December 28, 2000, DEA issued a May 31, 2000, in Auburn, Washington; 60’s’’ product were found on July 7, Warning Letter to PDK indicating that and that 2 bottles of PDK ‘‘Max Brand 2000, in Reno, Nevada; and that 341 12 bottles of PDK ‘‘Max Brand Pseudo Pseudo 60’s’’ product were found on bottles of PDK ‘‘Max Brand Pseudo 60’s’’ product were found on February June 5, 2000, in Ozawkie, Kansas, all in 60’s’’ product and 7 packets of PDK 24, 2000, in Stevenson, Alabama; that 1 connection with the clandestine ‘‘Pseudo 60’s’’ product were found on bottle of PDK ‘‘Max Brand Psuedo 60’s’’ manufacture of controlled substances. September 1, 2000, in Portland, Oregon, and 1 bottle of PDK ‘‘Two Way On July 5, 2000, DEA issued a all in connection with the clandestine Ephedrine Max Brand’’ product were Warning Letter to PDK indicating that manufacture of controlled substances. found on September 6, 2000, in 1,871 bottles of PDK ‘‘Max Brand On September 25, 2000, DEA issued Russellville, Alabama; and that 144 Pseudo 60’s’’ product were found on a Warning Letter to PDK indicating that bottles of PDK ‘‘Max Brand Pseudo April 12, 2000, in Temecula, California, approximately 400 bottles of PDK 60’s’’ product were found on December in connection with the clandestine ‘‘Mini-Pseudo’’ product were found on 12, 2000, in Dallas, Texas, all in manufacture of controlled substances. September 7, 2000, in Fallbrook, connection with the clandestine On July 7, 2000, DEA issued a California, in connection with the manufacture of controlled substances. Warning Letter to PDK indicating that 6 clandestine manufacture of controlled On January 23, 2001, DEA issued a bottles of PDK ‘‘Max Brand Pseudo substances. Warning Letter to PDK indicating that 60’s’’ product were found on December On October 24, 2000, DEA issued a 25 bottles of PDK ‘‘Two Way Max 17, 1999, in Freeport, Florida; and that Warning Letter to PDK indicating that Brand’’ product were found on June 20, 1 empty case indicating a volume of 144 15 bottles of PDK ‘‘Max Brand Pseudo 2000, in Sicklerville, New Jersey; and bottles of PDK ‘‘Two Way Max Brand,’’ 60’s’’ product were found on August 22, that 369 bottles of PDK ‘‘Two Way Max and 78 bottles of PDK ‘‘Max Brand 2000, in Cedar Rapids, Iowa; and that Brand’’ product were found on Pseudo 60’s’’ product were found on 1,152 bottles of PDK ‘‘Max Brand December 6, 2000, in Carson City, April 14, 2000, in Sherman, Texas, all Pseudo 60’s’’ product were found on Nevada, both in connection with the in connection with the clandestine March 14, 2000, in Turlock, California, clandestine manufacture of controlled manufacture of controlled substances. both in connection with the clandestine substances. On July 7, 2000, DEA issued a manufacture of controlled substances. It is recognized that the above Warning Letter to PDK indicating that On October 27, 2000, DEA issued a Warning Letters reflect that 672 bottles of PDK ‘‘Max Brand Pseudo Warning Letter to PDK indicating that pseudoephedrine listed products were 60’s’’ product were found on February 287 bottles of PDK ‘‘Max Brand Pseudo found at these clandestine laboratories 29, 2000, in Hillsboro, Oregon; that 12 60’s’’ product were found on October and dump sites, along with PDK’s bottles of PDK ‘‘Max Brand Pseudo 20, 2000, in Lake Havasu City, Arizona, ephedrine chemical products. However, 60’s’’ product were found on March 23, in connection with the clandestine DEA is aware that there is a close 2000, in Gales Creek, Oregon; and that manufacture of controlled substances. relationship between these two listed 3 bottles of PDK ‘‘Max Brand Pseudo On November 9, 2000, DEA issued a chemicals in the methamphetamine 60’s’’ product were found on April 6, Warning Letter to PDK indicating that manufacturing process and PDK used 2000, in Washington County, Oregon, 504 bottles and 35 boxes of PDK ‘‘Max the same or similar distribution chain to all in connection with the clandestine Brand Pseudo 60’s’’ product were found distribute both forms of listed chemical manufacture of controlled substances. on October 12, 2000, in Portland, products. Based on agency experience, On July 13, 2000, DEA issued a Oregon, in connection with the DEA knows that the same or similar Warning Letter to PDK indicating that clandestine manufacture of controlled methods of diversion are employed by 157 bottles of PDK ‘‘Max Brand Pseudo substances. clandestine methamphetamine 60’s’’ product were found on July 7, On November 13, 2000, DEA issued a manufacturers to obtain both 2000, in Plano, Texas, in connection Warning Letter to PDK indicating that pseudoephedrine and ephedrine listed with the clandestine manufacture of 15 bottles of ‘‘Mini Tabs Two Way,’’ 5 chemical products and that a history of controlled substances. packets of PDG ‘‘Two Way Max Brand’’ diversion of one product is probative as On September 23, 2000, DEA issued product and 480 packets of PDK ‘‘Max to the potential for diversion of the a Warning Letter to PDK documenting Brand Pseudo 60’s’’ product were found other. Thus, the Deputy Administrator that 24 bottles of PDK ‘‘Max Brand on July 31, 2000, in Little Rock, concludes that the diversion of PDK’s Pseudo 60’s’’ product were found on Arkansas; and that approximately 1,700 pseudoephedrine chemical products June 21, 2000, in Las Vegas, Nevada; bottles of PDK ‘‘Max Brand Pseudo reflected in the Warning Letters is that 36 bottles of PDK ‘‘Max Brand 60’s’’ product were found on July 26, highly relevant to the potential for Pseudo 60’s’’ product were found on 2000, in Lawrence, Kansas, all in future diversion of its ephedrine August 3, 2000, in Portland Oregon; that connection with the clandestine chemical products. 217 bottles and 2,880 packets of PDK manufacture of controlled substances. The Government did not introduce ‘‘Max Brand Pseudo 60’s’’ product and On November 15, 2000, DEA issued a evidence as to the quantity of other 7 packets of PDK ‘‘Pseudo 60’s’’ product Warning Letter to PDK indicating that manufacturer’s listed chemical products were found on September 8, 2000, in 528 packets of PDK ‘‘Max Brand Pseudo that have been found to be diverted, Las Vegas, Nevada, all in connection 60’s’’ product were found on September only the quantities and types of PDK’s with the clandestine manufacture of 27, 2000, in South Jordan, Utah, in products which had been the subject of controlled substances. connection with the clandestine Warning Letters for the period at issue. On September 23, 2000, DEA issued manufacture of controlled substances. It is also recognized that section a Warning Letter to PDK indicating that On December 18, 2000, DEA issued a 971(c)(1) requires an exercise of agency 72 bottles of PDK ‘‘Max Brand Pseudo Warning Letter to PDK indicating that discretion, given that all ephedrine 60’s’’ product were found on April 25, 354 bottles of PDK ‘‘Ephedrine Two chemical products require the 2000, in Copeville, Texas; that 2 bottles Way’’ product were found on August 12, importation of the listed chemical into of PDK ‘‘Two Way Max Brand’’ product 2000, in Yakima, Washington, in the United States at some point in their were found on May 2, 2000, in connection with the clandestine manufacturing and/or distribution Charlotte, North Carolina; that 142 manufacture of controlled substances. chain. Thus, literally every shipment is

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subject to a theoretical possibility that it a List I manufacturer’s registration where his duties include overseeing the ‘‘may’’ be diverted. under 21 U.S.C. 824(d). The registrant company’s regulatory compliance. DEA recognizes that it and other law challenged that action and the district Neither of these personnel decisions, enforcement agencies are aware of and court upheld the DEA order based, in but particularly the retention of Mr. able to take action against only a small part, on the fact that ‘‘Neil Labs received Lulkin as a key overseer of regulatory number of the total clandestine approximately 30 warning letters from matters, despite his convictions for methamphetamine laboratories and the DEA between February 4, 1999, and fraud and a felony against the company, dump sites in this country. Accordingly, March 11, 2002, that identified various generates confidence on the part of the the specific universe of PDK product instances in which Neil Labs’ product Deputy Administrator that PDK is diverted, vis a vis, all other had been diverted to illicit uses.’’ Id., at sufficiently committed to complying manufacturers’ products, is a number 87. with the myriad of regulatory which cannot be established with The Deputy Administrator finds the requirements designed to prevent specificity. However, the Deputy record shows through testimony and diversion of listed chemicals. Administrator notes that at a March documentary evidence that over a In sum, the Deputy Administrator 1998 meeting between DEA and PDK, period of several years, PDK and DEA finds, based on the foregoing, that the DEA personnel concluded that PDK’s corresponded and met with the bulk ephedrine which is the subject of listed chemical products were being intention of resolving problems the Suspension of Shipment Orders is a reported as the most prevalently found pertaining to the diversion of PDK’s ‘‘listed chemical’’ that ‘‘may be products at illicit settings in this ephedrine and pseudoephedrine diverted’’ and that the orders should be country, i.e., ‘‘PDK products were products. Evidence presented by PDK sustained. As discussed earlier, the full court in number one in terms of being seized at indicated it had taken steps to PDK Labs agrees remand was necessary methamphetamine labs.’’ Tr. 1613. implement controls in its plant and because the then-Deputy Administrator Given the quantities and diverse distribution chain and during this had also concluded PDK violated export locations of PDK listed chemical period, DEA permitted certain listed notification requirements in connection products discovered at illicit sites chemical shipments, destined for PDK, reflected in the Warning Letters, DEA is with the sale and delivery of ephedrine to be imported. Nevertheless, as able to draw a reasonable inference products to Sun Labs of Canada. documented by the Warning Letters, regarding the likelihood that the instant Because the evidence showed the PDK’s products continued to appear at shipments may be diverted and to product was actually delivered to the illicit settings in substantial amounts, exercise its discretion as to the need to customer within the United States, the despite remedial efforts undertaken or prohibit their import. Court concluded the then-Deputy In Mediplas, without having to promised by the company. As the Court Administrator had failed to explain the undergo any attempt at a comparative of Appeal observed in ALRA agency’s apparent divergence from its statistical analysis, the Deputy Laboratories, Inc. v. DEA, 54 F.3d 450 decision in Alfred Khalily, Inc., supra Administrator found ‘‘the nine Warning (7th Cir. 1995), ‘‘An agency rationally 65 FR 31,289 (1999). See PDK labs, Letters issued to Mediplas provided may conclude that past performance is supra, 362 F.3d at 798–99. substantial evidence documenting the the best predictor of future In Khalily, the then-Deputy diversion of thousands of bottles of its performance.’’ Id., at 452. Administrator agreed with the ALJ that previously imported List I chemical As a collateral matter, it is noted that the respondent company was not Products * * *.’’ Mediplas, supra, 67 the individual responsible for responsible for filing export FR at 41262. In comparison, PDK’s 22 implementing PDK’s operating documentation regarding its sale of a Warning Letters detail diversion of procedures for responding to DEA listed chemical, hydriotic acid, to a thousands of bottles of its previously Warning Letters was Mr. Michael Mexican based company, R.J. Meyer. imported List I chemicals to Lulkin. Beginning in 1990, Mr. Lulkin, The key findings were that ‘‘R.J. approximately 140 illicit an attorney, had served as PDK’s outside Meyers’s purchase orders revealed that methamphetamine laboratory-related counsel. In 1995, he was hired as in- the shipments were either consigned to sites located in at least 18 states. home counsel and became PDK’s Vice Jose Gutierrez, and sometimes Gus The fact that a company’s product has President of Legal Affairs and Pimental c/o Sky Harbor Delivery in been discovered in clandestine subsequently it’s Director of Tucson, Arizona, or to Jose Gutierrez c/ laboratories and dump sites has been a Administrative Affairs. In 1998, Mr. o Gus Pimental ata warehouse in regular basis for DEA taking adverse Lulkin, along with PDK’s then- Phoenix, Arizona’’ and ‘‘According to action against manufacturers and President, Mr. Michael Krasnoff, was Respondent’s invoices, Respondent sold distributors of List I chemical products, convicted in Federal court of four felony the hydriotic acid to R.J. Meyer, but it again without attempting statistical counts relating to securities fraud, was shipped to Jose Gutierrez at Sky comparative analysis. See OTC money laundering and mail fraud. The Harbor Delivery. These shipments were Distribution, supra, 68 FR at 70544 (14 mail fraud offenses involved PDK. Mr. ‘FOB Destination,’ which according to Warning Letters in 21 months a factor in Lulkin was subsequently disbarred from Mr. Khalily means that the shipper’s revoking registration of List I chemical the practice of law in 1999. responsibility ends when the product is product distributor); Sinbad PDK’s Board of Directors and its delivered to the specified location.’’ Distributing, supra, 67 FR at 10233 current President, Mr. Reginald Khalily, supra, 64 FR at 31, 290. (registration as a distributor of listed Spinello, who had worked for Mr. The chemicals had been shipped to chemical products denied in part Krasnoff as PDK’s Executive Vice the Arizona warehouse and because two potential suppliers of President for Operations since 1991, subsequently picked up by Mr. applicant had received 15 Warning allowed Mr. Krasnoff and Mr. Lulkin to Gutierrez who, it turned out, was not a Letters between them); CHM Suppliers, remain associated with PDK. After representative of R.J. Meyer. The 67 FR 9985, (2002) (same). resigning as President in 1998, Mr. chemicals were then loaded into a rental In Neil Laboratories, Inc. v. Ashcroft, Krasnoff continued to serve as a truck and disappeared. R.J. Meyer’s 217 F. Supp.2d 80 (D.D.C. 2002), DEA consultant to the company. Mr. Lulkin personnel testified that the shipments had issued an immediate suspension of continues as an employee of PDK, never entered Mexico and DEA was

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unable to determine their disposition at PDK’s facility in Hauppauge, New ownership or control, or the sending of after they left the Arizona warehouse. York. He further testified it was PDK’s listed chemicals out of the United States The then-DEA Deputy Administrator belief that, after picking up the product, (whether or not such sending or taking concluded, ‘‘While Respondent was Mr. Krape’s immediate intention was to out constitutes an exportation within selling above threshold quantities of transport it to his storage facilities in the meaning of the Customs and related hydriotic acid to a Mexican company, New York. Although there was no laws of the Unites States).’’ 21 CFR these sales were ‘‘FOB Destination’’ testimony that the ephedrine product 1313.02(a) (1995), now 21 CFR transactions and therefore Respondent’s was actually shipped to Canada, the 1300.02(b)(5) (italics in original, responsibility ended when the Deputy Administrator finds it emphasis added). chemicals were delivered to the reasonable to infer that it was destined In Khalily, the shipment was warehouse in Arizona. Respondent did for Canada and to only remain in the consigned ‘‘F.O.B’’ to a buyer at an not send or take the listed chemicals out United States temporarily. Arizona warehouse and the ALJ and of the United States, nor was it the The invoices indicated the customer then-Deputy Administrator were ‘principal party in interest’ with the was Sun Labs, located in Mississauga, obviously focused on the implications power and control for sending the Ontario, Canada. A DEA diversion of the ‘‘F.O.B’’ transfer i.e., chemicals out of the United States. investigator testified that ‘‘the address ‘‘Respondent’s responsibility ended Therefore, it was not responsible for on the invoices and the shipping labels, when the chemicals were delivered to filing any export documentation.’’ the shipping documents, indicated it the warehouse in Arizona.’’ Khalily, Khalily, 64 FR at 31293 (emphasis was going to Ontario, Canada.’’ supra, 64 FR at 31,293. Further, there added). Additionally, the investigator testified was no evidence that the listed In the instant case, the then-Deputy that each of the bills of lading for these chemicals were ever sent to Mexico. The Administrator concluded that ‘‘[g]iven transactions stated the ephedtine was facts here are distinguishable. the circumstances of these sales, and being billed to and shipped to Sun Labs The invoices and bills of lading especially given that PDK actually in Ontario, Canada. identify the listed chemical products as believed the product was destined for While there were no shipping charges being purchased by and ‘‘shipped to’’ export, that PDK should have complied on the invoices and the ‘‘Name of Sun Labs, a Canadian company at its with DEA export regulations in effect at Carrier’’ on the bills of lading listed foreign address in Ontario. While the the time.’’ 67 FR at 77808. He also either ‘‘Pick-up’’ or ‘‘Perry Krape,’’ the bills of lading also indicated the product concluded the ‘‘record shows that PDK invoices, which were introduced into was going to be ‘‘picked up’’ at PDK’s violated DEA export regulations on at evidence, stated a ‘‘Ship to’’ address of Hauppauge premises, even if the least four occasions by failing to file the ‘‘Sun Labs, Inc., 300–2400 Dun Dun St product was not being immediately required notifications of its shipments West, Mississauga ON L5K2R8.’’ The transported across the border, to Sun Labs.’’ 67 FR at 77809. ‘‘Bill to’’ address on the invoices was ‘‘ownership’’ and ‘‘control’’ was Notwithstanding Khalily, under the the same foreign location. The bills of knowingly transferred by PDK to a unique facts of this case the Deputy lading further identified the ‘‘To company located outside of the United Administrator agrees that PDK should Consignee’’ as Sun Labs Inc. at its States, thus falling within the definition have filed export notifications with Mississauga, Ontario address. of ‘‘chemical export’’—which ‘‘no DEA. Mr. Krasnoff also assumed Sun Lab’s person’’ (including PDK) ‘‘shall export The evidence shows that between owner was going to distribute this or cause to be exported from the United 1994 and 1995, PDK sold Sun Labs of product in Canada, as Mr. Krasnoff States * * * until such time as the Canada at least four shipments of testified PDK had a ‘‘no-compete’’ Administrator has been notified.’’ 21 ephedrine and ephedrine agreement with Sun Labs in which Sun CFR 1313.21(a). hydrochloride, a listed chemical. During Labs agreed it would not sell ephedrine While Mr. Krape apparently picked these proceedings, the parties disputed in PDK’s territory, which included the the listed chemicals up at PDK’s New whether these shipments were entire United States. Further, Mr. York location, the Deputy Administrator ‘‘exports,’’ which required filing of a Krasnoff testified in reference to these concludes PDK knew the listed DEA Form 486 report within 15 days of transactions, that he ‘‘believe[d] that chemicals were going to be physically the ‘‘export,’’ pursuant to 21 CFR [Sun Labs] intention was to take the taken outside the United States, albeit at 1313.21. That regulation provides, in product to Canada at some point in time an uncertain date, which the company relevant part, ‘‘no person shall export or and that [Sun Labs] was putting together never sought to ascertain and/or report. cause to be exported from the United a distribution system in order to Where ownership and control was States any [listed chemical] * * * until distribute that produce in Canada.’’ transferred to a foreign company, under such time as the Administrator has been Finally, Mr. Krasnoff states that Mr. the unique facts of this case, the Deputy notified. Notification must be made not Krape had said he ‘‘was going to be the Administrator concludes that export later than 15 days before the transaciton ephedrine king of Canada.’’ 7 regulations required PDK to notify DEA is to take place.’’ 21 CFR 1313.21(a). For purposes of these export of the transactions. Neither PDK nor Sun Labs, nor their regulations, 21 CFR 1312.02, defines the Compliance with regulatory then-principals, were strangers. At the term ‘‘chemical export’’ to cover more requirements is relevant to the risk of time, the President and owner of Sun than just the physical sending or taking diversion the listed chemicals will face Labs was Mr. Perry Krape, a former of the listed chemical out of the United as they progress through the chain of principal and a founder of PDK who, up States. Instead it provides ‘‘The term commerce from importation and/or until November of 2000, retained 8% ‘chemical export’ means transferring exportation, manufacture and ultimate ownership in PDK. distribution through wholesalers and The ALJ noted in her findings that Mr. 7 Although he is no longer with PDK, Mr. Krasnoff retailers. With regard to exports, DEA is Krasnoff, discussed earlier as the subject was also quoted as saying in May of 1996, ‘‘it’s none aware that precursor chemicals can be of felony convictions involving the of my business if someone gets high off of this brought into the United States from stuff,’’ demonstrating an improper attitude for an company, was PDK’s President during officer of a DEA registrant and a cavalier approach their countries of origin and then this period. Mr. Krasnoff testified that toward complying with DEA regulations, including exported to other countries, where they these orders were delivered to Sun Labs those pertaining to exports. are diverted to the manufacture of

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methamphetamine and other controlled received over 8,800 tablets of the same considered in light of its self-serving substances and then subject to being product between June and October of nature, Mr. Kraasnoff’s other untruths smuggled back into the United States. 1995. Based on his consultations with a while testifying, and his fraud based See e.g., Neil Laboratories, supra, 64 FR pharmacist, a DEA diversion felony convictions. Accordingly, the at 30,064 (exportation of investigator deemed these sales to be Deputy Administrator finds that the pseudoephedrine from New Jersey to excessive, given the individual subject sales should have been reported Mexico suspended because of risk of therapeutic dosage units recommended as suspicious. Further, this evidence diversion). Further, the government’s in the Physician’s Desk Reference and establishes that in 1995, PDK, sold evidence showed that Sun Labs had a the United States Pharmacy Index for a ephedrine products directly to toll free 800 number and took orders one month period of time. Based on a individuals who diverted them to illicit from customers in the United States for recommended dosage of six tablets per purposes. List I chemical products, thereby day, the investigator testified that However, it also noted these returning them to this country. ‘‘[e]very individual (purchase) on the transactions occurred a number of years Additional, the Government offered mail order from 1995 was excessive.’’ ago, Mr. Krasnoff’s relationship with testimony that DEA ‘‘was beginning to David Chapin was subsequently arrested PDK has finally been severed, PDK see Canadian product showing up in for having an operational ceased its mail order sales and the large numbers in [clandestine] labs.’’ Tr. methamphetamine lab and stated that company has reported a series of at 753. the PDK was the source of his suspicious sales to DEA on other An exporter/transshipper’s failure to ephedrine. He was subsequently occasions. Nevertheless, the Deputy comply with the notification convicted and sentence to 96 months in Administrator finds that PDK’s past requirements of 21 CFR 1313.31 has Federal prison. attitude and its engaging in these previously been cited as a ground for However, based primarily upon Mr. transactions, along with its failure to suspending shipments. See e.g., Yi Heng Krasnoff’s testimony, the ALJ concluded report them as suspicious, are relevant Enterprises Dev. Co., supra, 64 FR at that PDK believed Chapin and Young as to whether the current suspensions 2,235 (respondent transshipper were repackaging the single-entity should be sustained.9 concedes point and DEA holds ‘‘it is ephedrine tablets purchased from PDK At the hearing, DEA witnesses undisputed that no advance notification for resale, thus the quantities would not testified regarding traditional retail of * * * shipments * * * was provided have appeared to be suspicious and outlets and non-traditional retail outlets to DEA as required by the regulations need not have been reported to DEA. and the types of listed chemical and that this provides a basis for the While the Deputy Administrator agrees products distributed to these outlets. suspension of these shipments.’’); there was no evidence introduced that The traditional market is characterized Suspension of Shipments, supra, 65 FR PDK specifically knew of the buyers’ by a short distribution pattern to large at 51,338 (‘‘Finally, [the transhipper] illicit manufacturing, the evidence chain grocery stores, large chain failed to file advance notification of indicates a disturbing willingness on the convenience stores, large chain drug these shipments.’’). part of PDK to turn a blind eye toward stores, large discount retailers and large The Deputy Administrator recognizes diversion of its product. chain convenience stores. These that PDK’s regulatory omissions are The ALJ specifically fond that Mr. products are packaged in blister packs mitigated by the facts of their age and Kranoff told DEA investigators in a May and are 30 mg in strength. The non- that the company’s failure to file 1996 investigation concerning these traditional outlets are characterized by a notifications did not involve the specific sale, that he could care less who ordered very lengthy distribution chain of listed shipments at issue in the suspension what and how much. He also stated that chemical products packaged in higher orders. Nevertheless, PDK’s non- ‘‘it’s none of my business if someone strength and in bottles of 60 or more compliance with regulatory gets high off this stuff.’’ Significantly, dosage units. The higher strength requirements in these instances is the ALJ found Mr. Krasnoff’s sworn products are those products usually considered relevant.8 testimony at the hearing, in which he found at the illicit methamphetamine The Orders to Suspend Shipments denied making these statements, to be production sites. also alleged that in 1995, PDK made incredible. The Deputy Administrator The Suspicious Orders Task Force direct mail orders sales of its ephedrine agrees that this witness was not credible also identified as suspicious, customers chemical products to individuals who and that his credibility is also who resell large volumes of listed were later arrested and convicted of diminished by his convictions of felony chemical products to the ‘‘independent manufacturing and possessing offenses involving moral turpitude. convenience store’’ market. While PDK methamphetamine with intent to When pressed on cross-examination does not currently distribute List I distribute and admitted obtaining their as to his belief that ‘‘smallest of chemical products directly to the public precurser chemicals from PDK. Based distributors were repackaging or or to retail sales outlets, including on her view of the evidence, the ALJ reselling,’’ Mr. Krasnoff testified that: convenience stores, witnesses indicated declined to find that these sales were We got the sense that there was a network that through its distribution scheme, suspicious transactions which should of distributors who distributed his product PDK is the largest supplier of generic have been reported by PDK pursuant to that we manufactured either in a List I chemical products to the 21 CFR 1310.05(a)(1). Tupperware-type setting of [sic] door to door convenience store market. The evidence showed that David sales, and/or some of them distributing the Since the hearing on this matter, a Chapin ordered and received over product through the mail, ad hoc mail order series of DEA final orders have companies. 12,000 tablets of ephedrine, 25 mg, addressed the distribution of listed during February 1995 and Jason Young Tr. 1993 (emphasis added). The Deputy Administrator finds this 9 However, again for clarification of future 8 For clarification should this final order be testimony, suggesting that mail order reviewers, notwithstanding the above findings, the appealed, the Deputy Administrator finds that the recipients were emptying tablets out of Deputy Administrator finds that the evidence of evidence of diversion reflected in the series of diversion reflected in the series of Warning Letters Warning Letters provides a sufficient basis for a 1,000 count bottle and reselling them provid3es a sufficient independent basis for sustaining the suspension orders, independent of in a Tupperware setting or door to door concluding that the List I chemicals may be the export notification infractions. to be incredible, particularly when diverted and the suspension orders sustained.

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chemical products through the gray prepared by the Government expert in instant record and declines to find that market and in particular, through statistical analysis, Jonathan Robbin. * * * the vidence concerning the gray market independent convenience stores. In [T]he Acting Deputy Administrator . . . introduced in this specific case supports finds compelling Mr. Robbin’s conclusion of Mediplas, my predecessor discounted the unlikelihood that convenience stores a factual finding that the listed the probative weight of the would sell more than $27.00 worth of chemicals which are the subject of the Government’s ‘‘anecdotal’’ evidence pseudoephedrine per month to consumers two suspension orders ‘‘may be ‘‘without some form of further extrinsic purchasing decongestant products, as diverted.’’10 evidence to support these arguments.’’ purportedly sold by Respondent’s customers. In arriving at this decision, the Mediplas, supra, 67 FR at 41,264. In The Acting Deputy Administrator further Deputy Administrator has considered sustaining the shipments in the initial credits Mr. Robbin’s finding regarding the PDK’s stature and business activities in final order here, my predecessor noted inconceivability of customers purchasing a the business community, its efforts at year’s supply of list I chemical products from the evidence in PDK’s hearing was convenience stores and related compliance, as well as the evidence ‘‘essentially identical’’ to the evidence establishments on a monthly basis. available to DEA up to the time of the in Mediplas. Accordingly, he applied The Acting Deputy Administrator also hearing. The Deputy Administrator the same rule and declined to find that finds persuasive the conclusion of Mr. finds that there was sufficient evidence the Government’s evidence of PDK’s Robbin that the pseudoephedrine products at the time of the hearing to support gray market distribution chain supplied by Respondents to its customers did DEA’s contention that the chemicals supported the suspension orders. See, not follow the normal channel of distribution may be diverted. ‘‘As the Deputy of goods of this kind. This finding is given Administrator has previously noted, e.g., Indace/Malladi, supra, 67 FR at further credence when one considers the 77808. quantities of pseudoephedrine the [e]vidence of a violation of law is not In Branex, Incorporated, supra, 69 FR respondent sold to its convenience store necessary to demonstrate that at 8696 while then-Acting Deputy customers and the exorbitant price some of suspensions were lawful.’’ Mediplas, Administrator, I approve use of the these customers were willing to pay the supra, 67 FR at 41,262 citing above Mediplas evidentiary standard: Respondent for those products. The Acting Suspension of Shipments, supra, 65 FR Deputy Administrator finds that the In deference to my predecessor’s ruling in at 51337. Therefore, the Deputy compelling nature of Mr. Robbin’s market Administrator concludes that the [Mediplas], a finding regarding convenience study casts doubt on the legitimacy of the stores [as] conduits for the diversion of listed Respondent’s customers, and brings some suspensions set forth in the January 25 chemicals does not necessarily translate to a context to the diversion of the respondent’s and 26, 2001, Order to Suspend finding regarding the existence of the so- listed chemical product. Shipments of ephedrine hydrochloride called ‘traditional’ versus ‘non-traditional’ issued to Indace and Malladi were Branex, supra, 69 FR at 8,693; see e.g., markets for products containing ephedrine justified. and pseudoephedrine. Rather, in Mediplas, Xtreme Enterprises, Inc, supra, 67 FR at Accordingly, the Deputy the then-Deputy Administrator found there 76,197 (denying registration as a listed Administrator of the Drug Enforcement was little probative value to such evidence, chemical distributor after testimony by Administration, pursuant to the and the probative weight of evidence Mr. Robbin on graymarket and holding regarding traditional and non-traditional authority vested in her by 21 U.S.C. 971 that applicant’s positive factors were markets is ‘minimal without some form of and 28 CFR 0.100(b) and 0.104, hereby ‘‘far outweighed’’ by lack of experience further extrinsic evidence to support these orders that the suspensions of the above and ‘‘the fact that she intends to sell arguments [Citation].’ The Acting Deputy described shipments, be, and hereby ephedrine almost exclusively in the gray Administrator notes further, my are, sustained, and that these predecessor’s conclusion that a registrant’s market.’’). See also Value Wholesale, 69 proceedings are hereby concluded. sale of large quantities of list I chemicals do FR 58,548 (2004) (citing Xtreme not, in and of themselves, demonstrate that This final order is effective Enterprises, Inc. and denying immediately. the chemicals may be diverted. registration inpart on intent to distribute Branex, supra, 69 FR at 8693. to grey market); K & Z Enterprises, Inc., Dated: November 9, 2004. However, at the Branex hearing the 69 FR 51475 (2004) (same); William E. Michele M. Leonhart, Government did introduce substantial ‘‘Bill’’ Smith d/b/a B&B Wholesale, 69 Deputy Administrator. extrinsic evidence satisfying the FR 22559 (2004) (same); John E. McCrae [FR Doc. 04–25695 Filed 11–19–04; 8:45 am] Mediplas standard. In that regard, I d/b/a J & H Wholesale, 69 FR 51480 BILLING CODE 4410–09–M held: (2004) (same); SPA Dynamic The Acting Deputy Administrator concurs Wholesalers, 68 FR 61466 (2003) (citing with Judge Bittner’s conclusion that the Robbin study and denying registration DEPARTMENT OF JUSTICE government met the Mediplas evidentiary as distributor to grey market). requirement by showing that Respondent While DEA has concluded in the Drug Enforcement Administration sold pseudoephedrine to customers that did above series of cases that grey market not have a reasonable expectation of being establishments, such as convenience Manufacturer of Controlled able to resell the product to a legitimate stores and gas stations, constitute Substances; Notice of Application customer base. Specifically, the Government presented a relevant comparison analysis sources for the diversion of listed Pursuant to Section 1301.33(a) of Title involving the marketing and sale of bottled chemical products and can form the 21 of the Code of Federal Regulations pseudoephedrine products to a relatively basis for adverse action against (CFR), this is notice that on August 19, small market by OTC Distribution (a supplier registrants and potential registrants, the 2004, ISP, Freetown Fine Chemicals, of listed chemicals to Respondent) versus Government’s evidence which formed Inc., 238 South Main Street, Assonet, that of nationally recognized pharmaceutical the basis for those holdings was not Massachusetts 02702, made application manufacturers and distributors of those presented at PDK’s hearing. Thus, PDK products (i.e., Pfizer and the L. Perrigo has not had an opportunity to refute or 10 Company). The Acting Deputy Administrator However, as noted earlier, for the limited purpose of interpreting the term ‘‘listed chemical’’ also finds telling, the testimony of Pfizer and contest that evidence and it is outside the record. as it appears in section 971(c)(1) and the policy Perrigo representatives that neither were implications of the alternatives, the findings and aware of OTC Distribution as a possible Accordingly, the Deputy conclusions contained in the above cited cases are competitor. More persuasive however, was Administrator will continue to apply considered relevant to DEA’s application of the the testimony and documentary evidence the Mediplas evidentiary standard to the agency’s current knowledge and expertise.

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by renewal to the Drug Enforcement basic class of controlled substance listed manufacturer of the basic classes of Administration (DEA) for registration as in Schedule II. controlled substances listed: a bulk manufacturer of the basic classes The company plans to import of controlled substances listed: Phenylacetone to manufacture Drug Schedule amphetamine. Drug Schedule Any manufacturer who is presently, Alphamethadol (9605) ...... I or is applying to be, registered with DEA Benzoylecgonine (9180) ...... II 2, 5–Dimethoxyamphetamine I to manufacture such basic class of Morphine (9300) ...... II (7396). controlled substance may file comments Amphetamine (1100) ...... II The company plans to manufacture Phenylacetone (8501) ...... II or objections to the issuance of the proposed registration and may, at the the listed controlled substances in bulk same time, file a written request for a to manufacture other controlled The company plans to manufacture hearing on such application pursuant to substances. phenylacetone to be used in the 21 CFR 1301.43 and in such form as manufacture of the amphetamine. The Any other such applicant and any prescribed by 21 CFR 1316.47. person who is presently registered with bulk 2, 5–dimethoxyamphetamine will Any such comments or objections or be used for conversion into non- DEA to manufacture such substances requests for hearing may be addressed, may file comments or objections to the controlled substances. in quintuplicate, to the Deputy Assistant Any other such applicant and any issuance of the proposed registration Administrator, Office of Diversion pursuant to 21 CFR 1301.33(a). person who is presently registered with Control, Drug Enforcement DEA to manufacture such substance Administration, United States Any such comments or objections may file comments or objections to the Department of Justice, Washington, DC may be addressed, in quintuplicate, to issuance of the proposed registration 20537, Attention: DEA Federal Register the Deputy Assistant Administrator, pursuant to 21 CFR 1301.33(a). Representative, Office of Liaison and Office of Diversion Control, Drug Any such comments or objections Policy (ODLR) and must be filed no later Enforcement Administration, United may be addressed, in quintuplicate, to than December 22, 2004. States Department of Justice, the Deputy Assistant Administrator, This procedure is to be conducted Washington, DC 20537, Attention: DEA Office of Diversion Control, Drug simultaneously with, and independent, Federal Register Representative, Office Enforcement Administration, United of the procedures described in 21 CFR of Liaison and Policy (ODLR) and must States Department of Justice, 1301.34(b), (c), (d), (e) and (f). As noted be filed no later than January 21, 2005. Washington, DC 20537, Attention: DEA in a previous notice published in the Dated: November 8, 2004. Federal Register Representative, Office Federal Register on September 23, 1975, William J. Walker, of Liaison and Policy (ODLR) and must (40 FR 43745–46), all applicants for Deputy Assistant Administrator, Office of be filed no later than January 21, 2005. registration to import a basic class of Diversion Control, Drug Enforcement Dated: November 8, 2004. any controlled substances in Schedule I Administration. William J. Walker, or II are and will continue to be required [FR Doc. 04–25769 Filed 11–19–04; 8:45 am] Deputy Assistant Administrator, Office of to demonstrate to the Deputy Assistant BILLING CODE 4410–09–P Diversion Control, Drug Enforcement Administrator, Office of Diversion Administration. Control, Drug Enforcement [FR Doc. 04–25767 Filed 11–19–04; 8:45 am] Administration, that the requirements BILLING CODE 4410–09–P for such registration pursuant to 21 DEPARTMENT OF LABOR U.S.C. 958(a), 21 U.S.C. 823(a), and 21 CFR 1301.34(b), (c), (d), (e) and (f) are Employment and Training DEPARTMENT OF JUSTICE satisfied. Administration Dated: November 8, 2004. Drug Enforcement Administration Trade Adjustment Assistance William J. Walker, Program: Training and Employment Importer of Controlled Substances; Deputy Assistant Administrator, Office of Guidance Letter Interpreting Federal Notice of Application Diversion Control, Drug Enforcement Law; Correction Administration. Pursuant to 21 U.S.C. 958(i), the [FR Doc. 04–25768 Filed 11–19–04; 8:45 am] AGENCY: Employment and Training Attorney General shall, prior to issuing BILLING CODE 4410–09–P Administration, Labor. a registration under this Section to a bulk manufacturer of a controlled ACTION: Correction. substance in Schedule I or II and prior DEPARTMENT OF JUSTICE to issuing a registration under 21 U.S.C. SUMMARY: In notice document 04–22919 952(a)(2)(B) authorizing the importation Drug Enforcement Administration beginning on page 60903 in the issue of of such a substance, provide Wednesday, October 13, 2004, make the Manufacturer of Controlled manufacturers holding registrations for following correction: Substances; Notice of Application the bulk manufacture of the substance On page 60903, the heading to the an opportunity for a hearing. Pursuant to Section 1301.33(a) of Title document was omitted and should be Therefore, in accordance with 21 CFR 21 of the Code of Federal Regulations added to read: Employment and 1301.34(a), this is notice that on August (CFR), this is notice that on September Training Advisory System, U.S. 20, 2004, ISP Freetown Fine Chemicals, 28, 2004, Orasure Technologies, Inc., Department of Labor, Washington, DC 238 South Main Street, Assonet, Lehigh University, Seeley G. Mudd- 20210. Massachusetts 02702, made application Building 6, Bethlehem, Pennsylvania Classification: TAA. by renewal to the Drug Enforcement 18015, made application by renewal to Administration (DEA) for registration as the Drug Enforcement Administration Correspondence Symbol: ONR. an importer of Phenylacetone (8501), a (DEA) for registration as a bulk Date: November 6, 2003.

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Signed in Washington, DC this 15th day of States which heretofore have been approved NATIONAL FOUNDATION ON THE November, 2004. under the Federal Unemployment Tax Act: ARTS AND THE HUMANITIES Timothy F. Sullivan, Alabama, Alaska, Arizona, Arkansas; Director, Division of Trade Adjustment California, Colorado, Connecticut; Delaware, National Endowment for the Arts Assistance. District of Columbia; Florida; Georgia; [FR Doc. E4–3273 Filed 11–19–04; 8:45 am] Hawaii; Idaho, Illinois, Indiana, Iowa; Arts Advisory Panel Kansas, Kentucky; Louisiana; Maine, BILLING CODE 4510–30–P Pursuant to section 10(a)(2) of the Maryland, Massachusetts, Michigan, Federal Advisory Committee Act (Pub. Minnesota, Mississippi, Missouri, Montana; L. 92–463), as amended, notice is hereby DEPARTMENT OF LABOR Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North given that a meeting of the Arts Employment and Training Carolina, North Dakota; Ohio, Oklahoma, Advisory Panel, Arts Education section Administration Oregon; Pennsylvania, Puerto Rico, Rhode (Arts Teachers Institutes category) to the Island; South Carolina, South Dakota; National Council on the Arts will be Federal-State Unemployment Tennessee, Texas; Utah; Vermont, Virginia, held by teleconference on Friday, Compensation Program: Certifications Virgin Islands; Washington, West Virginia, December 10, 2004 from 5:30 p.m. to for 2004 Under the Federal Wisconsin, Wyoming. 6:40 p.m. e.s.t., in Room 703 at the Unemployment Tax Act This certification is for the maximum Nancy Hanks Center, 1100 Pennsylvania normal credit allowable under Section Avenue, NW., Washington, DC 20506. On October 31, 2004, the Secretary of 3302(a) of the Code. This meeting is for the purpose of Labor signed the annual certifications Signed at Washington, DC, on October 31, Panel review, discussion, evaluation, under the Federal Unemployment Tax 2004. and recommendations on financial Act, 26 U.S.C. 3301 et seq., thereby Elaine L. Chao, assistance under the National enabling employers who make Foundation on the Arts and the contributions to State unemployment Secretary of Labor. Department of Labor, Humanities Act of 1965, as amended, funds to obtain certain credits against Office of the Secretary, including information given in their liability for the Federal Washington, DC. confidence to the agency. In accordance unemployment tax. By letter of the same with the determination of the Chairman date the certifications were transmitted Certification of State Unemployment of April 30, 2003, these sessions will be to the Secretary of the Treasury. The Compensation Laws to the Secretary of the closed to the public pursuant to letter and certifications are printed Treasury Pursuant to Section 3303(b)(1) of subsection (c)(6) of section 552b of Title below. the Internal Revenue Code of 1986 5, United States Code. Dated: November 1, 2004. In accordance with the provisions of Further information with reference to Emily Stover DeRocco, paragraph (1) of Section 3303(b) of the this meeting can be obtained from Ms. Internal Revenue Code of 1986 (26 U.S.C. Assistant Secretary. Kathy Plowitz-Worden, Office of 3303(b)(1)), I hereby certify the Guidelines & Panel Operations, National Secretary of Labor, unemployment compensation laws of the Endowment for the Arts, Washington, Washington, DC, following named states, which heretofore DC 20506, or call (202) 682–5691. October 31, 2004. have been certified pursuant to paragraph (3) Dated: November 17, 2004. The Honorable John W. Snow, of Section 3303(b) of the Code, to the Secretary of the Treasury, Secretary of the Treasury for the 12-month Kathy Plowitz-Worden, Washington, DC 20220. period ending on October 31, 2004: Alabama, Panel Coordinator, Panel Operations, Dear Secretary Snow: Transmitted Alaska, Arizona, Arkansas; California, National Endowment for the Arts. herewith are an original and one copy of the Colorado, Connecticut; Delaware, District of [FR Doc. 04–25828 Filed 11–19–04; 8:45 am] certifications of the States and their Columbia; Florida, Georgia, Hawaii; Idaho, BILLING CODE 7537–01–P unemployment compensation laws for the Illinois, Indiana, Iowa; Kansas, Kentucky, 12-month period ending on October 31, 2004. Louisiana; Maine, Maryland, Massachusetts, One is required with respect to the normal Michigan, Minnesota, Mississippi, Missouri, NUCLEAR REGULATORY Federal unemployment tax credit by Section Montana; Nebraska, Nevada, New 3304 of the Internal Revenue Code of 1986 COMMISSION Hampshire, New Jersey, New Mexico, New (IRC), and the other is required with respect [Docket No. 030–33821] to the additional tax credit by Section 3303 York, North Carolina, North Dakota; Ohio, Oklahoma, Oregon; Pennsylvania, Puerto of the IRC. Both certifications list all 53 Notice of Availability of Environmental jurisdictions. Rico, Rhode Island; South Carolina, South Dakota; Tennessee, Texas, Utah; Vermont, Assessment and Finding of No Sincerely, Significant Impact for License Elaine L. Chao, Virginia, Virgin Islands; Washington, West Virginia, Wisconsin, Wyoming. Amendment for Belair Quartz, Inc.’s (Enclosures.) This certification is for the maximum Facility in Christiansted, St. Croix Department of Labor, additional credit allowable under section AGENCY: Nuclear Regulatory Office of the Secretary, 3302(b) of the Code. Washington, DC. Commission. Signed at Washington, DC, on October 31, ACTION: Notice of Availability. Certification of States to the Secretary of the 2004. Treasury Pursuant to Section 3304(c) of the Elaine L. Chao, FOR FURTHER INFORMATION CONTACT: Internal Revenue Code of 1986 Secretary of Labor. Orysia Masnyk Bailey, Materials In accordance with the provisions of [FR Doc. 04–25782 Filed 11–19–04; 8:45 am] Security & Industrial Branch, Division Section 3304(c) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(c)), I hereby certify BILLING CODE 4510–30–M of Nuclear Materials Safety, Region I, the following named States to the Secretary 475 Allendale Road, King of Prussia, of the Treasury for the 12-month period Pennsylvania, 19406, telephone (404) ending on October 31, 2004, in regard to the 562–4739, fax (404) 562–4955; or by e- unemployment compensation laws of those mail: [email protected].

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SUPPLEMENTARY INFORMATION: that the environmental impacts from the NUCLEAR REGULATORY action are bounded by the impacts I. Introduction COMMISSION evaluated by NUREG-1496, Volumes 1– The Nuclear Regulatory Commission 3, ‘‘Generic Environmental Impact Advisory Committee on Reactor (NRC) is terminating Materials License Statement in Support of Rulemaking on Safeguards; Subcommittee Meeting on No. 55–23732–02 issued to Belair Radiological Criteria for License Planning and Procedures; Notice of Quartz, Inc. and authorizing release of Termination of NRC-Licensed Facilities’ Meeting its facility in Christiansted, St. Croix, (ML042310492, ML042320379, and U.S. Virgin Islands for unrestricted use. ML042330385). On the basis of the EA, The ACRS Subcommittee on Planning NRC has prepared an Environmental the NRC has concluded that the and Procedures will hold a meeting on Assessment (EA) in support of this environmental impacts from the action December 1, 2004, Room T–2B1, 11545 action in accordance with the are expected to be insignificant and has Rockville Pike, Rockville, Maryland. requirements of 10 CFR part 51. Based determined not to prepare an The entire meeting will be open to on the EA, the NRC has concluded that environmental impact statement for the public attendance, with the exception of a Finding of No Significant Impact action. (FONSI) is appropriate. The license will a portion that may be closed pursuant be terminated following the publication IV. Further Information to 5 U.S.C. 552b(c) (2) and (6) to discuss of this notice. Documents related to this action, organizational and personnel matters that relate solely to the internal II. EA Summary including the application for the license termination and supporting personnel rules and practices of the The purpose of the action is to documentation, are available ACRS, and information the release of terminate the license and authorize the electronically in the NRC’s Agencywide which would constitute a clearly release of the licensee’s Christiansted, Document Access and Management unwarranted invasion of personal St. Croix facility for unrestricted use. System (ADAMS), which provides text privacy. Belair Quartz, Inc. (Belair Quartz) was and image files of NRC’s public authorized by the NRC from April 27, The agenda for the subject meeting documents. The ADAMS accession shall be as follows: 1995, to use watch dials and hands numbers for the documents related to containing luminous paint activated this Notice are: The Environmental Wednesday, December 1, 2004—11:30 with tritium for the manufacture and Assessment (ML042720034), and the a.m.—1 p.m. repair of timepieces. On October 31, Letter dated October 31, 2001, 2001, Belair Quartz requested that the transmitting the Final Status Survey The Subcommittee will discuss NRC release the facility for unrestricted Report (ML013120531). On October 25, proposed ACRS activities and related use. Belair Quartz has conducted 2004, the NRC terminated public access matters. The Subcommittee will gather surveys of the facility and provided to ADAMS and initiated an additional information, analyze relevant issues and information to the NRC to demonstrate security review of publicly available facts, and formulate proposed positions that the site meets the license documents to ensure that potentially and actions, as appropriate, for termination criteria in Subpart E of 10 sensitive information is removed from deliberation by the full Committee. CFR part 20 for unrestricted release. the ADAMS database accessible through The NRC staff has prepared an EA in Members of the public desiring to the NRC’s web site. Interested members support of the license amendment. The provide oral statements and/or written of the public may obtain copies of the facility was remediated and surveyed comments should notify the Designated referenced documents for review and/or prior to the licensee requesting the Federal Official, Mr. Sam Duraiswamy copying by contacting the Public license termination. The NRC staff has (telephone: 301–415–7364) between Document Room pending resumption of reviewed the information and final 7:30 a.m. and 4:15 p.m. (ET) five days public access to ADAMS. The NRC status survey submitted by Belair Quartz prior to the meeting, if possible, so that Public Documents Room is located at and performed a confirmatory survey. appropriate arrangements can be made. NRC Headquarters in Rockville, MD, Based on its review, the staff has and can be contacted at (800) 397–4209, Electronic recordings will be permitted determined that there are no additional (301) 415–4737 or by e-mail at only during those portions of the remediation activities necessary to [email protected]. meeting that are open to the public. complete the proposed action. These documents may be viewed Further information regarding this Therefore, the staff considered the electronically at the NRC Public meeting can be obtained by contacting impact of the residual radioactivity at Document Room (PDR), O 1 F21, One the facility and concluded that since the the Designated Federal Official between White Flint North, 11555 Rockville residual radioactivity meets the 7:30 a.m. and 4:15 p.m. (ET). Persons Pike, Rockville, MD, 20852. The PDR requirements in Subpart E of 10 CFR planning to attend this meeting are reproduction contractor will copy part 20, a Finding of No Significant urged to contact the above named documents for a fee. The PDR is open Impact is appropriate. individual at least two working days from 7:45 a.m. to 4:15 p.m., Monday prior to the meeting to be advised of any III. Finding of No Significant Impact through Friday, except on Federal potential changes in the agenda. holidays. The staff has prepared the EA Dated: November 16, 2004. (summarized above) in support of the Dated in King of Prussia, Pennsylvania, license amendment to terminate the this 15th day of November, 2004. John H. Flack, license and release the facility for For the Nuclear Regulatory Commission. Acting Branch Chief, ACRS/ACNW. unrestricted use. The NRC staff has John D. Kinneman, [FR Doc. 04–25778 Filed 11–19–04; 8:45 am] evaluated Belair Quartz, Inc.’’s request Chief, Materials Security & Industrial Branch, BILLING CODE 7590–01–P and the results of the surveys and has Division of Nuclear Materials Safety concluded that the completed action Region I. complies with the criteria in Subpart E [FR Doc. 04–25780 Filed 11–19–04; 8:45 am] of 10 CFR part 20. The staff has found BILLING CODE 7590–01–P

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PACIFIC NORTHWEST ELECTRIC been made available to help develop (503) 222–5161; (800) 452–5161. The POWER AND CONSERVATION fish and wildlife program amendment Counil’s fax number if (503) 820–2370. PLANNING COUNCIL recommendations. Subbasin planners The Subbasin Plan Draft Amendments were asked to develop subbasin plans are also found on the Council’s Web Northwest Power and Conservation that incorporate a technical assessment, site: www.nwcouncil.org. Planning Council Subbasin Plan; Draft an inventory of past and present If you are submitting comments on Amendments activities, and a management plan the draft amendments, please note AGENCY: Pacific Northwest Electric consisting of a vision, biological prominently which subbasin plan you Power and Conservation Planning objectives and implementation are commenting on and address them to Council (Northwest Power and strategies for the subbasin. Mr. Mark Walker, Director of Public Conservation Council; Council). On May 28, 2004, the Council Affairs. Comments may be submitted by received 59 recommendations for mail, by facsimile transmission (fax), or ACTION: Notice of availability and subbasin plans in 58 subbasins from by electronic mail at: opportunity to comment on subbasin various planning entities. The Council [email protected]. All plan draft amendments to the Council’s made those recommendations available comments must be received by 5 p.m. Columbia River Basin Fish and Wildlife for public review and comment, on November 22, 2004. Program (program). including review by a team of Stephen L. Crow, SUMMARY: Following the mandate set out independent scientists. The public Executive Director. in the Pacific Northwest Electric Power comment period on the Planning and Conservation Act of 1980 recommendations ended on August 12, [FR Doc. 04–25725 Filed 11–19–04; 8:45 am] (16 U.S.C. 839 et seq.) (the Act), in 2004. The Council received an extensive BILLING CODE 7905–01–M November 1982 the Council adopted a set of comments. The Council staff and regional program, the Columbia River Council also reviewed the plans during Basin Fish and Wildlife Program. The the comment period for consistency OFFICE OF PERSONNEL Act requires the program be designed to with standards in the Act for program MANAGEMENT protect, mitigate and enhance fish and amendments and with the provisions in the 2000 Program. wildlife of the Columbia River Basin Submission for OMB Review; After its review of the affected by hydropower dams, while Comment Request for Review of a recommendations and the comments on also assuring the region of an adequate, Revised Information Collection: RI 25– recommendations, on October 13, 2004, efficient, economical and reliable power 14 and RI 25–14A supply. the Council concluded that 29 of the 59 SUPPLEMENTARY INFORMATION: In 2000, subbasin plan recommendations were AGENCY: Office of Personnel the Council began a comprehensive ready for release for public review as Management. revision of the program. First, the draft amendments to the fish and ACTION: Notice. Council amended the program by wildlife program. The Council proposes adopting a framework of vision, to adopt the management plan portions SUMMARY: In accordance with the objectives and strategies at different of these subbasin plans as parts of the Paperwork Reduction Act of 1995 (Pub. geographic scales (basinwide, ecological program. The underlying technical L. 104–13, May 22, 1995), this notice province, subbasin), tied together with a assessments and inventories will be announces that the Office of Personnel consistent scientific foundation. The placed in an appendix to the program. Management (OPM) has submitted to Council also adopted basinwide The Council has scheduled public the Office of Management and Budget provisions and described how it hearings in the following locations to (OMB) a request for review of a revised proposed to add more specific accept oral and written comments on information collection. RI 25–14, Self- objectives and measures to the program draft subbasin plan program Certification of Full-Time School through integrated subbasin plans for amendments. Wednesday, October 27: Attendance for the School Year, is used the tributary subbasins of the Columbia Wenatchee, Washington, and Euguene, to survey survivor annuitants who are and for specific mainstem reaches. The Oregon; Thursday, October 28: between the ages of 18 and 22 to draft amendments now proposed for Kalispell, Montana; Wednesday, determine if they meet the requirements adoption will add subbasin plans to the November 3: Pendleton, Oregon; of section 8341(a)(4)(C), and section general, basinwide provisions of the Thursday, November 4: Ontario, 8441, title 5, U.S. Code, to receive program as the next step in the Oregon, and Boise, Idaho; Monday, benefits as a student. RI 25–14A, comprehensive revision. November 8: Vancouver, Washington; Information and Instructions for On August 12, 2002, the Council Tuesday, November 9: Portland, Oregon; Completing the Self-Certification of solicited recommendations for Wednesday, November 10: Hood River, Full-Time School Attendance, provides amendments to the program at the Oregon; Monday, November 15: instructions for completing the Self- subbasin level from the region’s State Clarkston, Washington; and Tuesday, Certification of Full-Time School and Federal fish and wildlife agencies, November 16: Coeur d’Alene, Idaho. For Attendance for the School Year survey Indian tribes, and others, as required by precise times and locations, please form. the Act. At the same time, the Council contact the Council’s central office or Approximately 14,000 RI 25–14 forms worked with a broad range of interests consult the Council’s Web site. are completed annually. We estimate it in the region and developed a FOR FURTHER INFORMATION CONTACT: If takes approximately 12 minutes to ‘‘Technical Guide for Subbasin you would like a copy of the Subbasin complete the form. The annual burden Planners’’ to help ensure that plans had Plan Draft Amendments on a compact is 2,800 hours. a consistent format and content. The disc or in printed form, please contact For copies of this proposal, contact Council also worked with the the Council’s central office. The Mary Beth Smith-Toomey on (202) 606– Bonneville Power Administration to Council’s address is 851 SW Sixth 8358, fax (202) 418–3251 or via e-mail secure funding support for planning Avenue, Suite 1100, Portland, Oregon to [email protected]. Please include a groups, the first time that funding has 97204 and its telephone numbers are mailing address with your request.

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DATES: Comments on this proposal ADDRESSES: Send or deliver comments SECURITIES AND EXCHANGE should be received within 30 calendar to—Pamela S. Israel, Chief, Operations COMMISSION days from the date of this publication. Support Group, Retirement Services ADDRESSES: Send or deliver comments Program, U.S. Office of Personnel Submission for OMB Review; to—Pamela S. Israel, Chief, Operations Management, 1900 E Street, NW., Room Comment Request Support Group, Retirement Services 3349, Washington, DC 20415; and Upon written request, copies available Program, Center for Retirement and Joseph Lackey, OPM Desk Officer, from: Securities and Exchange Insurance Services, U.S. Office of Office of Information & Regulatory Commission, Office of Filings and Personnel Management, 1900 E Street, Affairs, Office of Management & Budget, Information Services, Washington, DC NW., Room 3349, Washington, DC New Executive Office Building, NW., 20549. 20415; and Joseph Lackey, OPM Desk Room 10235, Washington, DC 20503. Extension: Rule 17a–3; SEC File No. 270– Officer, Office of Information & FOR FURTHER INFORMATION CONTACT: 026; OMB Control No. 3235–0033. Regulatory Affairs, Office of Cyrus S. Benson, Team Leader, Management and Budget, New Publications Team, Support Group, RIS Notice is hereby given that pursuant Executive Office Building, NW., Room Support Services, (202) 606–0623. to the Paperwork Reduction Act of 1995 10235, Washington, DC 20503. (44 U.S.C. 3501 et seq.), the Securities U.S. Office of Personnel Management. and Exchange Commission FOR FURTHER INFORMATION CONTACT: Kay Coles James, (‘‘Commission’’) has submitted to the Cyrus S. Benson, Team Leader, RIS Director. Office of Management and Budget Support Services/Support Group, [FR Doc. 04–25710 Filed 11–19–04; 8:45 am] (‘‘OMB’’) a request for extension of the Publications Team, (202) 606–0623. BILLING CODE 6325–38–P previously approved collection of U.S. Office of Personnel Management. information discussed below. Kay Coles James, Rule 17a–3 [17 CFR 240.17a–3] under Director. the Securities Exchange Act of 1934 [FR Doc. 04–25709 Filed 11–19–04; 8:45 am] PRESIDIO TRUST requires records to be made by certain BILLING CODE 6325–38–P exchange members, brokers, and Notice of Public Meeting dealers, to be used in monitoring compliance with the Commission’s AGENCY: The Presidio Trust. OFFICE OF PERSONNEL financial responsibility program and MANAGEMENT ACTION: Notice of public meeting. antifraud and antimanipulative rules as well as other rules and regulations of SUMMARY: In accordance with Submission for OMB Review; the Commission and the self-regulatory ‘‘§ 103(c)(6) of the Presidio Trust Act, 16 Comment Request for Review of a organizations. It is estimated that U.S.C. 460bb note, Title I of Pub. L. Revised Information Collection: OPM approximately 6,900 active broker- 104–333, 110 Stat. 4097, as amended, Form 1530; OMB 3206–0162 dealer respondents registered with the and in accordance with the Presidio Commission incur an average burden of AGENCY: Office of Personnel Trust’s bylaws, notice is hereby given 2,421,195 hours per year to comply with Management. that a public meeting of the Presidio this rule. It is estimated that Trust Board of Directors will be held ACTION: Notice. approximately 6,900 active broker- commencing 6 p.m. on Thursday, dealer respondents registered with the SUMMARY: In accordance with the December 9, 2004, at the Officers’ Club, Commission incur an average burden of Paperwork Reduction Act of 1995 (Pub. 50 Moraga Avenue, Presidio of San 2,421,195 hours per year to comply with L. 104–13, May 22, 1995), this notice Francisco, California. The Presidio Trust this rule. The Commission believes that announces that the Office of Personnel was created by Congress in 1996 to requirements included in Rule 17a– Management (OPM) has submitted to manage approximately eighty percent of 3(a)(17) relating to new account data the Office of Management and Budget the former U.S. Army base known as the would be performed by clerical workers. (OMB) a request for review of a revised Presidio, in San Francisco, California. The hourly wage of the average person information collection. OPM Form 1530, The purposes of this meeting are to who would be providing customers with Report of Medical Examination of provide an end of the year project and account record information is $24 per Person Electing Survivor Benefits Under budget update and to receive public hour.1 The hourly wage of the average the Civil Service Retirement System, is comment in accordance with the Trust’s person who would be updating account used to collect information regarding an Public Outreach Policy. record information is $25 per hour.2 annuitant’s health so OPM can Accommodation: Individuals Thus the aggregate cost of these hours determine whether the insurable requiring special accommodation at this is about $16.86 million ((601,753 hours interest survivor benefit election can be meeting, such as needing a sign × $24)3 + (96,742 hours × $25)4). The allowed. language interpreter, should contact Commission believes that requirements Approximately 500 OPM Form 1530 Mollie Matull at (415) 561–5300 prior to contained in the rest of Rule 17a–3 will be completed annually. We December 3, 2004. estimate it takes approximately 90 would be performed by individuals in a FOR FURTHER INFORMATION CONTACT: minutes to complete the form. The broker-dealer’s compliance department Karen Cook, General Counsel, the annual burden is 750 hours. For copies Presidio Trust, 34 Graham Street, P.O. 1 of this proposal, contact Mary Beth This figure is based on the SIA Report on Office Box 29052, San Francisco, California Salaries In the Securities Industry 2003 (Retail Sales Smith-Toomey on (202) 606–8358, fax 94129–0052, telephone: (415) 561–5300. Assistant, Junior) and includes 35% for overhead (202) 418–3251 or via e-mail to charges. [email protected]. Please include a Dated: November 16, 2004. 2 This figure is based on the SIA Report on Office mailing address with your request. Karen A. Cook, Salaries In the Securities Industry 2003 (Data Entry General Counsel. Clerk, Senior) and includes 35% for overhead DATES: Comments on this proposal charges. should be received within 30 calendar [FR Doc. 04–25779 Filed 11–19–04; 8:45 am] 3 This figure comes to approximately $14,442,072. days from the date of this publication. BILLING CODE 4310–4R–P 4 This figure comes to approximately $2,418,550.

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at $82 per hour.5 Thus, the dollar cost Dated: November 15, 2004. other business combination is planned. of the 4,600 yearly hours incurred as a Margaret H. McFarland, The estimated total annual reporting result of these rules is 1,722,700 × 82 = Deputy Secretary. burden of the collection of information $171.66 million. The total cost of [FR Doc. E4–3267 Filed 11–19–04; 8:45 am] is approximately 620 hours per response ongoing compliance with Rule 17a–3 is BILLING CODE 8010–01–P for a new registration statement, and $16.86 + $171.66 = $188.52 million. approximately 350 hours per response The Commission believes that for an amended Form N–14, for a total requirements included in Rule 17a– SECURITIES AND EXCHANGE of 235,010 annual burden hours. 3(a)(17) relating to new account data COMMISSION Written comments are invited on: (a) would be performed by clerical workers. Whether the proposed collection of The hourly wage of the average person Proposed Collection; Comment information is necessary for the proper who would be providing customers with Request performance of the Commission’s account record information is $24 per mission, including whether the Upon Written Request, Copy Available hour.6 The hourly wage of the average information will have practical utility; From: Securities and Exchange person who would be updating account (b) the accuracy of the Commission’s Commission, Office of Filings and record information is $25 per hour.7 estimate of the burden of the collection Information Services, Washington, DC Thus the aggregate cost of these hours of information; (c) ways to enhance the 20549. is about $16.86 million ((601,753 hours quality, utility, and clarity of the × $24)8 + (96,742 hours × $25)9). The Extension: Form N–14; SEC File No. 270– information collected; and (d) ways to Commission believes that requirements 297; OMB Control No. 3235–0336. minimize the burden of the collection of contained in the rest of Rule 17a–3 Notice is hereby given that, pursuant information on respondents, including would be performed by individuals in a to the Paperwork Reduction Act of 1995 through the use of automated collection broker-dealer’s compliance department (44 U.S.C. 3501 et seq.), the Securities techniques or other forms of information at $82 per hour.10 Thus, the dollar cost and Exchange Commission technology. Consideration will be given of the 4,600 yearly hours incurred as a (‘‘Commission’’) is soliciting comments to comments and suggestions submitted result of these rules is 1,722,700 × 82 = on the collection of information in writing within 60 days of this $171.66 million. The total cost of summarized below. The Commission publication. ongoing compliance with Rule 17a–3 is plans to submit this existing collection Please direct your written comments $16.86 + $171.66 = $188.52 million. of information to the Office of to R. Corey Booth, Director/Chief Rule 17a–3 does not contain record Management and Budget for extension Information Officer, Office of retention requirements. Compliance and approval. Information Technology, Securities and with the rule is mandatory. The Form N–14—Registration Statement Exchange Commission, 450 5th Street, required records are available only to Under the Securities Act of 1933 for NW., Washington, DC 20549. the examination staff of the Commission Securities Issued in Business Dated: November 15, 2004. and the self-regulatory organization of Combination Transactions by Margaret H. McFarland, which the broker-dealer is a member. Investment Companies and Business Deputy Secretary. An agency may not conduct or sponsor Development Companies. Form N–14 is [FR Doc. E4–3268 Filed 11–19–04; 8:45 am] and a person is not required to respond used by investment companies BILLING CODE 8010–01–P to a collection of information unless it registered under the Investment displays a currently valid control Company Act of 1940 [15 U.S.C. 80a–1 number. et seq.] (‘‘Investment Company Act’’) SECURITIES AND EXCHANGE General comments regarding the and business development companies as COMMISSION estimated burden hours should be defined by section 2(a)(48) of the directed to the following persons: (i) Investment Company Act to register [Release No. 34–50669; File No. SR-BSE– Desk Officer for the Securities and securities under the Securities Act of 2004–47] Exchange Commission, by sending an e- 1933 [15 U.S.C. 77a et seq.] to be issued _ Self-Regulatory Organizations; Notice mail to David [email protected]; in business combination transactions of Filing and Immediate Effectiveness and (ii) R. Corey Booth, Director/Chief specified in Rule 145(a) (17 CFR of Proposed Rule Change by the Information Officer, Office of 230.145(a)) and exchange offers. The Boston Stock Exchange, Inc. Relating Information Technology, Securities and securities are registered under the to $5 Quotation Spreads on the Boston Exchange Commission, 450 Fifth Street, Securities Act to ensure that investors Options Exchange NW., Washington, DC 20549. Comments receive the material information must be submitted to the Office of necessary to evaluate securities issued November 16, 2004. Management and Budget within 30 days in business combination transactions. Pursuant to Section 19(b)(1) of the of this notice. The Commission staff reviews Securities Exchange Act of 1934 registration statements on Form N–14 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 5 This figure is based on statistics collected by the for the adequacy and accuracy of the notice is hereby given that on October Commission’s Office of Economic Analysis. disclosure contained therein. Without 29, 2004, the Boston Stock Exchange 6 This figure is based on the SIA Report on Office Form N–14, the Commission would be (‘‘BSE’’ or ‘‘Exchange’’) filed with the Salaries In the Securities Industry 2003 (Retail Sales Assistant, Junior) and includes 35% for overhead unable to verify compliance with Securities and Exchange Commission charges. securities law requirements. The (‘‘SEC’’ or ‘‘Commission’’) the proposed 7 This figure is based on the SIA Report on Office respondents to the collection of rule change as described in items I and Salaries In the Securities Industry 2003 (Data Entry information are investment companies II below, which items have been Clerk, Senior) and includes 35% for overhead or business development companies charges. prepared by the Exchange. The 8 This figure comes to approximately $14,442,072. issuing securities in business Commission is publishing this notice to 9 This figure comes to approximately $2,418,550. combination transactions. The estimated 10 This figure is based statistics collected by the number of responses is 457 and the 1 15 U.S.C. 78s(b)(1). Commission’s Office of Economic Analysis. collection occurs only when a merger or 2 2 17 CFR 240.19b–4.

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solicit comments on the proposed rule A. Self-Regulatory Organization’s allocation in the BOX Price change from interested persons. Statement of the Purpose of, and Improvement Period (‘‘PIP’’).5 In the Statutory Basis for, the Proposed Rule BOX approval order the Commission I. Self-Regulatory Organization’s Change stated that it ‘‘believes that the BSE’s Statement of the Terms of Substance of 1. Purpose proposal to give priority to a Market the Proposed Rule Change Maker who quotes aggressively before a The purpose of the proposed rule The Exchange proposes to amend a PIP is initiated [Market Maker Prime], is change is to permit quote spread consistent with the Act and may section of its Boston Options Exchange parameters of up to $5, regardless of the rules regarding quote spread provide a further incentive for Market price of the bid, for all options classes Makers to publicly display their best requirements. The text of the proposed traded on the Boston Options Exchange rule change appears below. Additions quotes, which would benefit all options (‘‘BOX’’). Currently, Chapter VI, Section market participants.’’ 6 are in italics. Deleted items are in 5(a)(vii) of the BOX Rules establishes Given BOX’s NBBO protections 7 as brackets. maximum bid-ask differentials (also well as through the Options Market *** referred to as quote spread Linkage Plan, market participants have requirements) that vary from $0.25 to even stronger incentives to quote at the Chapter VI Market Makers $1.00, depending upon the price of the best price, lest incoming orders be filled option.3 The primary purpose of the Sec. 5 Obligations of Market Makers away. Thus, inter- and intra-market quote spread requirements is to help (a) maintain narrow spreads in options. competitive forces provide strong incentives for market participants to (i)–(vi) No change. These requirements can have the unintended consequence of requiring quote competitively and enter quotes (vii) Price options fairly by, among market makers to quote at prices that are and orders that improve the price and other things, bidding and offering so as unnecessarily narrow, thereby exposing depth of the market. to create differences of no more than them to great risk if markets move For these reasons, BSE proposes to [$.25]$5 between the bid and the offer quickly. widen the allowable spread on BOX to following the pre-opening phase for Given the competitive market making $5. The proposed quote spread each options contract. During the pre- structure of BOX, and the existence of requirements will apply after the opening phase, spread differentials vigorous inter-market competition, the opening. During the opening, market shall be no more than $.25 between the mandatory quote spread requirements makers will be required to quote in bid and offer for each options contract may not be necessary to ensure narrow accordance with the traditional bid-ask for which the bid is less than $2, no and competitive spreads in options. In width requirements. The $5 quotation more than $.40 where the bid is at least this regard, the BOX market structure requirements would become operative $2 but does not exceed $5, no more than creates strong incentives for competing immediately following the opening. $.50 where the bid is more than $5 but market makers and other market BSE notes that its proposal is similar does not exceed $10, no more than $.80 participants to disseminate competitive to pilot programs adopted by the where the bid is more than $10 but does prices. On BOX, each market maker International Securities Exchange, Inc. not exceed $20, and no more than $1.00 quotes independently, and customers (‘‘ISE’’) and the Chicago Board Options where the bid is $20 or greater, provided and broker-dealers can enter limit Exchange, Inc. (‘‘CBOE’’) that the SEC that BOX may establish differences orders at prices better than those posted recently approved on a permanent other than the above for one or more by market makers. BOX automatically basis,8 and a rule change proposed by options series. The bid/offer collects this trading interest the Pacific Exchange, Inc. (‘‘PCX’’) that differentials stated above shall not apply information, calculates the BOX best bid was immediately effective upon filing.9 to in-the-money options series where and offer, and disseminates that value to the underlying securities market is the Options Price Reporting Authority. 2. Statutory Basis wider than the differentials set forth Accordingly, the BOX market is The Exchange believes that the above. For these series, the bid/ask competitive, accessible and transparent. proposed rule change is consistent with differential may be as wide as the In addition, market participants in Section 6(b) of the Act,10 in general, and quotation on the primary market of the BOX have strong incentives to quote furthers the objectives of Section 6(b)(5) underlying security. competitively. BOX allocates incoming of the Act,11 in particular, in that it is *** orders based on the price and time of designed to promote just and equitable receipt of orders and quotes on the principles of trade, to prevent II. Self-Regulatory Organization’s book. A market participant, including a fraudulent and manipulative acts and, Statement of the Purpose of, and market maker, will not participate in Statutory Basis for, the Proposed Rule any trade if other orders or quotes have 5 See Chapter V, Section 18 of the BOX Rules. Change time priority at the same price. 6 See Securities Exchange Act Release No. 49068 Therefore, all BOX market participants (January 13, 2004), 69 FR 2775 (January 20, 2004) In its filing with the Commission, the have incentive to quote the best price (SR–BSE–2002–15). Exchange included statements first. Also, BOX’s unique Market Maker 7 See Chapter V, Section 16(b) of the BOX Rules. concerning the purpose of and basis for Prime Rule 4 gives market makers an BOX filters all inbound orders to ensure that these the proposed rule change and discussed orders will not execute at a price outside the added incentive to quote the best price current national best bid or offer. any comments it received on the first in order to gain an enhanced trade 8 See Securities Exchange Act Release Nos. 50015 proposed rule change. The text of these (July 14, 2004), 69 FR 43872 (July 22, 2004) (SR- statements may be examined at the 3 The allowable bid-ask differential are: $0.25 for ISE 2003–22); and 50079 (July 26, 2004), 69 FR places specified in item IV below. The options under $2, $0.40 for options between $2 and 45858 (July 30, 2004) (SR-CBOE–2004–44). Exchange has prepared summaries, set $5, $0.50 for options between $5 and $10, $0.80 for 9 See Securities Exchange Act Release No. 50538 options between $10 and $20, and $1.00 for options (October 14, 2003), 69 FR 62105 (October 22, 2004) forth in sections A, B, and C below, of above $20. See Chapter VI, Section 5(a)(vii) of the (SR–PCX–2004–89). the most significant aspects of such BOX Rules. 10 10 15 U.S.C. 78f(b). statements. 4 See Chapter V, Section 19 of the BOX Rules. 11 15 U.S.C. 78f(b)(5).

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in general, to protect investors and the because the proposal provides quote Securities and Exchange Commission, public interest. width relief similar to that provided 450 Fifth Street, NW., Washington, DC under the rules of other exchanges.18 B. Self-Regulatory Organization’s 20549–0609. Accordingly, the Exchange believes that Statement on Burden on Competition All submissions should refer to File its proposal does not raise new Number SR–BSE–2004–47. This file The Exchange does not believe that regulatory issues, significantly affect the number should be included on the the proposed rule change will impose protection of investors or the public subject line if e-mail is used. To help the any burden on competition that is not interest, or impose any significant necessary or appropriate in furtherance burden on competition. In addition, the Commission process and review your of the purposes of the Act. Exchange believes that its request is comments more efficiently, please use only one method. The Commission will C. Self-Regulatory Organization’s consistent with the protection of post all comments on the Commission’s Statement on Comments on the investors and the public interest and Internet Web site (http://www.sec.gov/ Proposed Rule Change Received from that good cause exists, including the Members, Participants or Others need to keep BOX competitive and rules/sro.shtml). Copies of the efficient. submission, all subsequent The Exchange has neither solicited The Commission believes that amendments, all written statements nor received comments on the proposed waiving the 30-day operative delay is with respect to the proposed rule rule change. consistent with the protection of change that are filed with the III. Date of Effectiveness of the investors and the public interest.19 Commission, and all written Proposed Rule Change and Timing for Specifically, the Commission believes communications relating to the Commission Action that allowing the BSE to implement $5 proposed rule change between the As noted above, this proposal is quotation spread parameters like those Commission and any person, other than similar to pilot programs adopted by the adopted by the ISE, the PCX, and the those that may be withheld from the ISE and the CBOE that the Commission CBOE will help the BOX to compete public in accordance with the recently approved on a permanent with those exchanges. The Commission provisions of 5 U.S.C. 552, will be basis,12 and a rule change proposed by believes that the BSE’s proposal raises available for inspection and copying in PCX that was immediately effective on no new issues or regulatory concerns the Commission’s Public Reference filing.13 Neither the ISE proposal nor the that the Commission did not consider in Section, 450 Fifth Street, NW., approving the ISE and CBOE proposals. CBOE proposal received any public Washington, DC 20549. Copies of this For these reasons, the Commission comments. Accordingly, the BSE filing also will be available for designates that the proposal become believes that this proposal does not raise inspection and copying at the principal operative immediately. any new issues or regulatory concerns. office of the BSE. All comments The Exchange has therefore designated At any time within 60 days of the filing of the proposed rule change, the received will be posted without change; the proposed rule change as a ‘‘non- the Commission does not edit personal controversial’’ rule change pursuant to Commission may summarily abrogate identifying information from Section 19(b)(3)(A) of the Act 14 and the rule change if it appears to the submissions. You should submit only subparagraph (f)(6) of Rule 19b–4 Commission that the action is necessary thereunder.15 Consequently, because the or appropriate in the public interest, for information that you wish to make foregoing rule change: (1) Does not the protection of investors, or would available publicly. All submissions significantly affect the protection of otherwise further the purposes of the should refer to File Number SR–BSE– investors or the public interest; (2) does Act. 2004–47 and should be submitted on or before December 13, 2004. not impose any significant burden on IV. Solicitation of Comments competition; and (3) does not become For the Commission, by the Division operative for 30 days from the date on Interested persons are invited to submit written data, views, and of Market Regulation, pursuant to which it was filed, or such shorter time delegated authority.20 as the Commission may designate if arguments concerning the foregoing, consistent with the protection of including whether the proposed rule Margaret H. McFarland, investors and the public interest, it has change is consistent with the Act. Deputy Secretary. Comments may be submitted by any of become effective pursuant to Section [FR Doc. E4–3271 Filed 11–19–04; 8:45 am] 16 the following methods: 19(b)(3)(A) of the Act and Rule 19b– BILLING CODE 8010–01–P 4(f)(6) thereunder.17 Electronic comments: A proposed rule change filed under • Use the Commission’s Internet Rule 19b–4(f)(6) normally does not comment form (http://www.sec.gov/ become operative prior to 30 days after the date of filing. However, Rule 19b– rules/sro.shtml); or • Send an e-mail to rule- 4(f)(6)(iii) permits the Commission to [email protected]. Please include File designate a shorter time if such action Number SR–BSE–2004–47 on the is consistent with the protection of subject line. investors and the public interest. The Exchange has requested that the Paper comments: Commission waive the 30-day operative • Send paper comments in triplicate delay specified in Rule 19b–4(f)(6) to Jonathan G. Katz, Secretary,

12 See supra, note 8. 18 See supra, notes 8 and 9. 13 See supra, note 9. 19 For purposes only of waiving the operative 14 15 U.S.C. 78s(b)(3)(A). delay for this proposal, the Commission has 15 17 CFR 240.19b–4(f)(6). considered the proposed rule’s impact on 16 15 U.S.C. 78s(b)(3)(A). efficiency, competition, and capital formation. 15 17 17 CFR 240.19b–4(f)(6). U.S.C. 78c(f). 20 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE Procedure Committee (‘‘FPC’’), for any and C below, of the most significant COMMISSION series of options where the bid or offer aspects of such statements. generated by Autoquote (Exchange or [Release No. 34–50673; File No. SR–CBOE– A. Self-Regulatory Organization’s proprietary) is equal to or crosses the 2004–52] Statement of the Purpose of, and Exchange’s best bid or offer as Statutory Basis for, the Proposed Rule established by an order in the Self-Regulatory Organizations; Notice Change of Filing of a Proposed Rule Change Exchange’s limit order book, orders in and Amendment No. 1 Thereto by the the book for options of that series will 1. Purpose Chicago Board Options Exchange, be automatically executed against The Exchange proposes to amend Incorporated To Amend Its ‘‘Trigger’’ participants on RAES (‘‘Trigger’’) up to CBOE Rule 6.8(d)(v), which governs the Rule To Permit RAES Orders To a size not to exceed the number of operation of the Exchange’s AutoQuote Automatically Execute Against Orders contracts equal to the applicable Triggered Ebook Execution System Resting on the Exchange’s Limit Order maximum size of RAES-eligible orders (‘‘Trigger’’). The proposed rule change Book for that series of options (‘‘Trigger would affect how incoming orders Volume’’). The appropriate FPC is submitted through the Exchange’s Retail November 16, 2004. responsible for determining the Trigger Pursuant to Section 19(b)(1) of the Automatic Execution System (‘‘RAES’’) Volume for a particular series of are treated at such time a locked or Securities Exchange Act of 1934 options. In the event a member in the 1 2 crossed market exists. (‘‘Act’’), and Rule 19b–4 thereunder, trading crowd verbally initiates a trade notice is hereby given that on July 30, Trigger is a system that allows orders with a book order prior to the time the resting in CBOE’s electronic book to be 2004, the Chicago Board Options book staff announces to the trading Exchange, Incorporated (‘‘CBOE’’ or automatically executed in the limited crowd that the order has been removed situation where the bid or offer for a ‘‘Exchange’’) filed with the Securities from the book by Trigger, the book staff and Exchange Commission series of options generated by CBOE’s will manually endorse the book order to AutoQuote system (‘‘AutoQuote’’), or (‘‘Commission’’) the proposed rule that member(s). In the event the order in change as described in items I, II, and any CBOE-approved proprietary quote the book is for a larger number of generation system used in lieu of III below, which items have been contracts than the applicable Trigger prepared by the CBOE. The CBOE AutoQuote, locks or crosses CBOE’s best Volume, the balance of the book order bid or offer for that series as established submitted Amendment No. 1 to the may be executed manually by the 3 by such booked orders. The Trigger proposal on September 23, 2004. The trading crowd. In the limited Commission is publishing this notice to functionality does not apply to options circumstance where contracts remain in traded on CBOE’s Hybrid Trading solicit comments on the proposed rule the book after an execution (or partial change from interested persons. System. execution) of a book order up to the The current Trigger rule (CBOE Rule I. Self-Regulatory Organization’s applicable Trigger Volume, the bid or 6.8(d)(v)) provides that when the quote Statement of the Terms of Substance of offer generated by Autoquote will be generated by AutoQuote locks or crosses the Proposed Rule Change one-tick inferior to the price of the book a resting order in the book, the Trigger order such that the disseminated quote The Exchange proposes to amend its process is initiated and the book order will not cross or lock with the ‘‘Trigger’’ rule (CBOE Rule 6.8(d)(v)) to up to the Trigger volume, which is set Autoquote bid or offer. In addition, permit RAES orders to automatically by the appropriate Floor Procedure where contracts remain in the book after execute against orders resting on the Committee (‘‘FPC’’), is immediately an execution (or partial execution) [In Exchange’s limit order book. Below is removed from the book and a last sale these instances], or for any series where the text of the proposed rule change. is disseminated. Where any unexecuted Trigger has not yet been implemented Proposed additions are italicized; balance remains in the book, it may be by the appropriate FPC, orders in RAES proposed deletions are [bracketed]. executed manually by the trading crowd for options of that series may either * * * * * or by others. During the entire Trigger [will not] be automatically executed [but process, incoming RAES orders do not Chicago Board Options Exchange, instead] or [will] be rerouted on ORS to automatically execute, and instead route Incorporated the crowd PAR terminal or to another to the PAR terminal, where the location in the event of system problems Rules Exchange’s Designated Primary Market- or contrary firm routing instructions, as Maker represents them. As soon as the * * * * * determined by the appropriate FPC on entire book order is removed from the Chapter VI—Doing Business on the a class by class basis. book, the new AutoQuote value, Exchange Floor * * * * * unimpeded by a crossed or locked market, is disseminated and RAES again * * * * * II. Self-Regulatory Organization’s is available for automatic executions. Statement of the Purpose of, and Rule 6.8 RAES Operations Under the proposed rule change, Statutory Basis for, the Proposed Rule incoming RAES orders submitted during (a)–(d)(iv) No change. Change (d)(v) Notwithstanding sub-paragraph the Trigger process would be eligible to (d)(iv), for classes of options as In its filing with the Commission, the execute against those book orders that determined by the appropriate Floor CBOE included statements concerning are crossed or locked by Autoquote. the purpose of and basis for the Specifically, if a balance remains on the 1 15 U.S.C. 78s(b)(1). proposed rule change, as amended, and book after the Trigger volume is 2 17 CFR 240.19b–4. discussed any comments it received on removed from the book, incoming RAES 3 See letter from David Doherty, CBOE, to Nancy the proposed rule change, as amended. orders would remain eligible for J. Sanow, Assistant Director, Division of Market The text of these statements may be execution against the book order instead Regulation, Commission, dated September 22, 2004 and accompanying Form 19b–4 (‘‘Amendment No. examined at the places specified in item of routing to the PAR terminal for 1’’). Amendment No. 1 replaced and superceded the IV below. The CBOE has prepared manual representation. The proposed original filing in its entirety. summaries, set forth in sections A, B, rule change does not change the existing

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process for incoming RAES orders that A. By order approve such rule change, For the Commission, by the Division are submitted prior to a locked or or of Market Regulation, pursuant to crossed market; these orders would B. Institute proceedings to determine delegated authority.6 continue to be executed in accordance whether the proposed rule change Margaret H. McFarland, with the RAES procedures set forth in should be disapproved. CBOE Rule 6.8 (i.e., if an order in the Deputy Secretary. Exchange’s book constitutes the best bid IV. Solicitation of Comments [FR Doc. E4–3275 Filed 11–19–04; 8:45 am] BILLING CODE 8010–01–P or offer on the Exchange, the incoming Interested persons are invited to RAES order will generally execute submit written data, views, and against the order in the book). The arguments concerning the foregoing, appropriate FPC would implement this SECURITIES AND EXCHANGE including whether the proposed rule COMMISSION Trigger enhancement on a class-by-class change is consistent with the Act. basis. Comments may be submitted by any of [Release No. 34–50665; File No. SR–FICC– The Exchange believes that by the following methods: 2004–05] allowing incoming RAES orders submitted during a locked or crossed Electronic comments Self-Regulatory Organizations; Fixed market to be eligible for automatic Income Clearing Corporation; Notice of • Use the Commission’s Internet execution, the number of corresponding Filing of a Proposed Rule Change To comment form (http://www.sec.gov/ orders routed to PAR for manual Amend Rules Relating to the rules/sro.shtml); or handling would decrease. As a result, Participants Fund Deposit • the Exchange believes that the proposed Send e-mail to rule- Requirements of Its Mortgage-Backed rule change provides public customers [email protected]. Please include File Securities Division with greater access to the Exchange’s Number SR–CBOE–2004–52 on the markets and more efficient execution of subject line. November 15, 2004. Pursuant to Section 19(b)(1) of the their RAES orders. Paper comments Securities Exchange Act of 1934 2. Statutory Basis • Send paper comments in triplicate (‘‘Act’’) 11, notice is hereby given that on The CBOE believes the proposed rule to Jonathan G. Katz, Secretary, March 3, 2004, the Fixed Income change, as amended, is consistent with Securities and Exchange Commission, Clearing Corporation (‘‘FICC’’) filed Section 6(b) of the Act,4 in general, and 450 Fifth Street, NW., Washington, DC with the Securities and Exchange furthers the objectives of Section 20549–0609. Commission (‘‘Commission’’) and on 6(b)(5),5 in particular, in that it should All submissions should refer to File March 11, 2004, amended the proposed promote just and equitable principles of Number SR-CBOE–2004–52. This file rule change described in items I, II, and trade and serve to remove impediments number should be included on the III below, which items have been to and perfect the mechanism of a free subject line if e-mail is used. To help the prepared primarily by FICC. The and open market and a national market Commission process and review your Commission is publishing this notice to system. comments more efficiently, please use solicit comments on the proposed rule change from interested parties. B. Self-Regulatory Organization’s only one method. The Commission will Statement on Burden on Competition post all comments on the Commission’s I. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ Statement of the Terms of Substance of The CBOE does not believe that the rules/sro.shtml). Copies of the the Proposed Rule Change proposed rule change will impose any submission, all subsequent FICC is seeking to amend the rules of burden on competition that is not amendments, all written statements its Mortgage-Backed Securities Division necessary or appropriate in furtherance with respect to the proposed rule (‘‘MBSD’’) to eliminate the basic deposit of the purposes of the Act. change that are filed with the component of its Participants Fund Commission, and all written C. Self-Regulatory Organization’s deposit requirement for participants that communications relating to the Statement on Comments on the are registered with the Commission as proposed rule change between the Proposed Rule Change Received From registered investment companies Commission and any person, other than Members, Participants or Others (‘‘RICs’’) pursuant to the Investment those that may be withheld from the No written comments were solicited Company Act of 1940.2 public in accordance with the or received with respect to the proposed provisions of 5 U.S.C. 552, will be II. Self-Regulatory Organization’s rule change. available for inspection and copying in Statement of the Purpose of, and III. Date of Effectiveness of the the Commission’s Public Reference Statutory Basis for, the Proposed Rule Proposed Rule Change and Timing for Room, 450 Fifth Street, NW., Change Commission Action Washington, DC 20549. Copies of such In its filing with the Commission, Within 35 days of the date of filing also will be available for FICC included statements concerning publication of this notice in the Federal inspection and copying at the principal the purpose of and basis for the Register or within such longer period (i) office of the CBOE. All comments proposed rule change and discussed any as the Commission may designate up to received will be posted without change; comments it received on the proposed 90 days of such date if it finds such the Commission does not edit personal rule change. The text of these statements longer period to be appropriate and identifying information from may be examined at the places specified publishes its reasons for so finding or submissions. You should submit only in item IV below. FICC has prepared (ii) as to which the Exchange consents, information that you wish to make summaries, set forth in sections (A), (B), the Commission will: available publicly. All submissions should refer to File SR–CBOE–2004–52 6 17 CFR 200.30–3(a)(12). 4 15 U.S.C. 78f(b). and should be submitted on or before 1 15 U.S.C. 78s(b)(1). 5 15 U.S.C. 78f(b)(5). December 13, 2004. 2 15 U.S.C. 80a–1.

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and (C) below, of the most significant authority given to it under Article IV, • Send an e-mail to rule- aspects of these statements.3 Rule 1, Section 3 of its Rules. FICC [email protected]. Please include File nonetheless believes it would be (A) Self-Regulatory Organization’s Number SR–FICC–2004–05 on the prudent to expressly state in its MBSD Statement of the Purpose of, and subject line. Rules that RICs are exempt from the Statutory Basis for, the Proposed Rule basic deposit requirement. Paper Comments Change FICC believes that the proposed rule • The purpose of the proposed rule change is consistent with the Send paper comments in triplicate change is to amend the rules of FICC’s requirements of Section 17A of the Act 7 to Jonathan G. Katz, Secretary, MBSD to eliminate the basic deposit and the rules and regulations Securities and Exchange Commission, component of the Participants Fund thereunder applicable to FICC because 450 Fifth Street, NW., Washington, DC deposit requirement for participants that by exempting RICs from its basic 20549–0609. are RICs.4 deposit requirement, FICC is enabling All submissions should refer to File In 2003, FICC received a no-action RICs to become participants and is Number SR-FICC–2004–05. This file 5 letter from the Commission’s Division doing so in a manner that allows FICC number should be included on the of Investment Management (‘‘IM’’) to safeguard the securities and funds in subject line if e-mail is used. To help the stating that IM would not recommend to its custody or control or for which it is Commission process and review your the Commission enforcement action responsible. comments more efficiently, please use under Section 17(f) of the Investment only one method. The Commission will Company Act of 1940 against any RIC or (B) Self-Regulatory Organization’s its custodian if the RIC or its custodian Statement on Burden on Competition post all comments on the Commission’s placed the RIC’s cash and/or securities FICC does not believe that the Internet Web site (http://www.sec.gov/ in the custody of the MBSD for purposes proposed rule change will have any rules/sro.shtml). Copies of the of meeting the Participants Fund impact or impose any burden on submission, all subsequent requirements imposed by the MBSD. competition. amendments, all written statements IM’s no-action letter was based upon the with respect to the proposed rule (C) Self-Regulatory Organization’s change that are filed with the fact that the main portions of the Statement on Comments on the Commission, and all written MBSD’s Participants Fund, the Proposed Rule Change Received from communications relating to the ‘‘minimum market margin differential Members, Participants or Others deposit’’ and the ‘‘market margin proposed rule change between the differential deposit,’’ are intended to Written comments relating to the Commission and any person, other than benefit the non-defaulting participants proposed rule change have not yet been those that may be withheld from the of the MBSD because these portions are solicited or received. FICC will notify public in accordance with the intended to provide assurances that the Commission of any written provisions of 5 U.S.C. 552, will be comments received by FICC. each participant’s contributions to the available for inspection and copying in Participants Fund will be adequate to III. Date of Effectiveness of the the Commission’s Public Reference satisfy all open commitments recorded Proposed Rule Change and Timing for Section, 450 Fifth Street, NW., with the MBSD. In contrast, the Commission Action Washington, DC 20549. Copies of such remaining portion of the Participants Within thirty-five days of the date of filing also will be available for Fund, the ‘‘basic deposit,’’ is designed publication of this notice in the Federal inspection and copying at the principal to protect the FICC by ensuring that Register or within such longer period (i) office of FICC and on FICC’s Web site each participant’s fees owing to the as the Commission may designate up to at http://www.ficc.com. All comments MBSD will be paid if the participant is ninety days of such date if it finds such received will be posted without change; unable to meet such fee obligations. longer period to be appropriate and In granting no-action relief to FICC, the Commission does not edit personal publishes its reasons for so finding or identifying information from IM staff relied upon FICC’s (ii) as to which the self-regulatory representation that RICs would be submissions. You should submit only organization consents, the Commission information that you wish to make exempt from the basic deposit will: requirement. FICC determined that this available publicly. All submissions (A) By order approve such proposed should refer to File Number SR–FICC– representation would not subject it to rule change or undue risk because the basic deposit is (B) Institute proceedings to determine 2004–05 and should be submitted on or a relatively minimal amount and this whether the proposed rule change before December 13, 2004. exemption affects very few should be disapproved. For the Commission by the Division participants.6 The management of FICC of Market Regulation, pursuant to IV. Solicitation of Comments returned the basic deposits posted by its delegated authority.8 RIC clearing members under perceived Interested persons are invited to submit written data, views, and Margaret H. McFarland, 3 The Commission has modified the text of the arguments concerning the foregoing, Deputy Secretary. summaries prepared by FICC. including whether the proposed rule [FR Doc. E4–3270 Filed 11–19–04; 8:45 am] 4 FICC will also state in the MBSD’s Schedule of change is consistent with the Act. Charges that the basic deposit does not apply to BILLING CODE 8010–01–P RICs. Comments may be submitted by any of 5 5 No-Action Letter under the Investment the following methods: Company Act of 1940—Section 17(f) and Rule 17f– 4, to Fixed Income Clearing Corporation (March 13, Electronic Comments 2003). • Use the Commission’s Internet 6 Currently, the basic deposit is determined comment form (http://www.sec.gov/ semiannually and is the greater of (a) $1,000 or (b) the participant’s average monthly bill (per account) rules/sro.shtml) or with a maximum of $10,000. The MBSC currently has only two RIC clearing members. 7 15 U.S.C. 78q–1. 8 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE I. Self-Regulatory Organization’s Supplementary Material to Rule 2001 COMMISSION Statement of the Terms of Substance of the Proposed Rule Change .01 The reporting authorities [Release No. 34–50674; File No. SR–ISE– designated by the Exchange in respect of 2004–09] The ISE is proposing to amend its each index underlying an index options rules to list and trade options on the contract traded on the Exchange are as Self-Regulatory Organizations; Notice Standard & Poor’s 1000 Index (‘‘S&P provided in the chart below. of Filing of a Proposed Rule Change 1000’’ or ‘‘Index’’). Specifically, the ISE and Amendments No. 1 and No. 2 by proposes to list and trade options based Underlying index Reporting authority the International Securities Exchange, on: (i) One-tenth of the value of the Inc., Relating to the Listing and Index (‘‘Reduced Value Index Options’’ S&P SmallCap 600 Standard & Poor’s. Trading of Options on the S&P 1000 or ‘‘Reduced Value S&P 1000 Options’’); Index. Index and (ii) one one-hundredth of the value Morgan Stanley Tech- American Stock Ex- nology Index. change. November 16, 2004. of the Index (‘‘Micro Index Options’’ or ‘‘Micro S&P 1000 Options’’). The ISE S&P MidCap 400 Standard & Poor’s. Pursuant to Section 19(b)(1) of the Index. also proposes to list and trade long-term Securities Exchange Act of 1934 S&P 1000 Index ...... Standard & Poor’s. (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Reduced Value Index Options and long- notice is hereby given that on April 5, term Micro Index Options (the Reduced Value Index Options, Micro Index Rule 2004. Position Limits for Broad- 2004, the International Securities Based Index Options Exchange, Inc. (‘‘Exchange’’ or ‘‘ISE’’) Options, long-term Reduced Value filed with the Securities and Exchange Index Options, and long-term Micro (a) Rule 412 generally shall govern Index Options may be referred to, Commission (‘‘Commission’’) the position limits for broad-based index collectively, as the ‘‘Index Options’’). proposed rule change as described in options, as modified by this Rule 2004. The Index Options will be cash-settled items I, II, and III below, which items There may be no position limit for have been prepared by the ISE. The ISE and have European-style exercise provisions. The text of the proposed certain Specified (as provided in Rule submitted Amendments No. 1 and No. 2000) broad-based index options 3 rule change appears below; additions 2 to the proposal on July 16, 2004, and contracts. All other broad-based index 4 are italicized. August 2, 2004, respectively. The options contracts shall be subject to a * * * * * Commission is publishing this notice to contract limitation fixed by the solicit comments on the proposed rule Rule 2001. Definitions Exchange, which shall not be larger than change, as amended, from interested the limits provided in the chart below. persons. * * * * *

Standard limit (on the same side of the mar- Broad-based underlying index ket) Restrictions

S&P SmallCap 600 Index ...... 100,000 contracts ...... No more than 60,000 near-term. S&P MidCap 400 Index ...... 45,000 contracts ...... No more than 25,000 near-term. Reduced Value S&P 1000 Index ...... 50,000 contracts ...... No more than 30,000 near-term. Micro S&P 1000 Index ...... 500,000 contracts ...... No more than 300,000 near-term.

* * * * * expiration. The current index value at the Rules and By-Laws of the Clearing the expiration of an A.M.-settled index Corporation; and Rule 2009. Terms of Index Options Contracts option shall be determined, for all (ii) In the event that the primary purposes under these Rules and the market for an underlying security is (a) General. Rules of the Clearing Corporation, on open for trading on that day, but that * * * * * the last day of trading in the underlying particular security does not open for (4) ‘‘European-Style Exercise.’’ The securities prior to expiration, by trading on that day, the price of that following European-style index options, reference to the reported level of such security, for the purposes of calculating some of which may be A.M.-settled as index as derived from first reported sale the current index value at expiration, provided in paragraph (a)(5), are (opening) prices of the underlying shall be the last reported sale price of approved for trading on the Exchange: securities on such day, except that: the security. (i) S&P SmallCap 600 Index (i) In the event that the primary The following A.M.-settled index (ii) Morgan Stanley Technology Index options are approved for trading on the market for an underlying security does (iii) S&P MidCap 400 Index Exchange: not open for trading on that day, the (iv) Reduced Value S&P 1000 Index (i) S&P SmallCap 600 Index (v) Micro S&P 1000 Index price of that security shall be (5) A.M.-Settled Index Options. The determined, for the purposes of (ii) Morgan Stanley Technology Index last day of trading for A.M.-settled index calculating the current index value at (iii) S&P MidCap 400 Index options shall be the business day expiration, as set forth in Rule 2008(g), (iv) Reduced Value S&P 1000 Index preceding the last day of trading in the unless the current index value at (v) Micro S&P 1000 Index underlying securities prior to expiration is fixed in accordance with * * * * *

1 15 U.S.C. 78s(b)(1). Regulation (‘‘Division’’), Commission, dated July Sanow, Assistant Director, Division, Commission, 2 17 CFR 240.19b–4. 15, 2004, and accompanying Form 19b–4 dated July 28, 2004 (‘‘Amendment No. 2’’). (‘‘Amendment No. 1’’). Amendment No. 1 replaced 3 See letter from Michael Simon, Senior Vice Amendment No. 2 made technical changes the filing in its entirety. clarifying the description of the Index and the President and General Counsel, ISE, to Nancy J. 4 See letter from Michael J. Simon, Senior Vice calculation of the Index Settlement Value. Sanow, Assistant Director, Division of Market President and General Counsel, ISE, to Nancy

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(c) Procedures for Adding and SmallCap 600 Index. The S&P MidCap the S&P 1000 Index) are as follows: The Deleting Strike Prices. The procedures 400 Index represents approximately component must (i) be a U.S. company; for adding and deleting strike prices for 70% of the Index and the S&P SmallCap (ii) have adequate liquidity and a index options are provided in Rule 504, 600 Index represents approximately reasonable price—the ratio of annual as amended by the following: 30% of the Index.7 The combination is dollar value traded to market (1) The interval between strike prices designed to address the needs of capitalization should be 0.3 or greater will be no less than $5.00; provided, investors who want to allocate assets (very low stock prices can affect a that in the case of the following classes between large capitalization stocks, on stock’s liquidity); (iii) have a market of index options, the interval between the one hand, and small and middle capitalization of $1 billion to $4 billion strike prices will be no less than $2.50: capitalization stocks, on the other for the S&P MidCap 400 and $300 (i) S&P SmallCap 600, if the strike hand.8 As of February 18, 2004, 607 million to $1 billion for the S&P price is less then $200.00 components in the Index were listed on SmallCap 600 (these ranges are (ii) Morgan Stanley Technology Index, the New York Stock Exchange reviewed from time to time to assure if the strike price is less then $200.00 (‘‘NYSE’’); 384 were listed on Nasdaq; consistency with market conditions); (iii) S&P MidCap 400 Index, if the and nine were listed on the American (iv) have financial viability, usually strike price is less than $200 Stock Exchange (‘‘Amex’’). All Nasdaq measured as four consecutive quarters (iv) Reduced Value S&P 1000 Index, stocks in the Index are designated as of positive as-reported earnings (as- if the strike price is less then $200.00 national market system securities by the reported earnings are GAAP Net Income (v) Micro S&P 1000 Index, if the strike National Association of Securities excluding discontinued operations and price is less then $200.00 Dealers (‘‘NASD’’), meaning, among extraordinary items); (v) have a public * * * * * other things, that real-time last sale float of at least 40% of the total issued reports are available for these stocks. and outstanding shares; (vi) maintain II. Self-Regulatory Organization’s The Commission previously approved sector balance for each index as Statement of the Purpose of, and the Exchange’s proposals to list and measured by a comparison of the Global Statutory Basis for, the Proposed Rule trade options on the S&P SmallCap 600 Industry Classification Standard sectors Change Index and the S&P MidCap 400 Index.9 and the relevant market capitalization In its filing with the Commission, the Although Standard & Poor’s (‘‘S&P’’) ranges for each index; and (vii) be an ISE included statements concerning the introduced the S&P 1000 in 2003, S&P operating company and not a closed-end purpose of and basis for the proposed calculated the Index internally for two fund, holding company, partnership, rule change and discussed any years prior to its introduction. Because investment vehicle or royalty trust (real comments it received on the proposed the Index is a combination of the S&P estate investment trusts are eligible for rule change, as amended. The text of MidCap 400 Index and the S&P inclusion in the Index). these statements may be examined at SmallCap 600 Index, the 1000 The following are the criteria for a the places specified in item IV below. components of the Index consist of the component to be deleted from the Index: The ISE has prepared summaries, set 400 components included in the S&P The component must (i) be involved in forth in sections A, B, and C below, of MidCap 400 Index and the 600 a merger, become acquired or the most significant aspects of such components included in the S&P significantly restructured such that it no statements. SmallCap 600 Index. Stated differently, longer meets the inclusion criteria; or when a component is added to (deleted (ii) substantially violate one or more of A. Self-Regulatory Organization’s from) either the S&P MidCap 400 Index the addition criteria.10 Finally, the Statement of the Purpose of, and or the S&P SmallCap 600 Index, the Index may not contain any component Statutory Basis for, the Proposed Rule component is simultaneously added to that is presently a component of the S&P Change (deleted from) the S&P 1000. As a result, 500 index. 1. Purpose the S&P 1000 does not have its own As of March 25, 2004, the Index’s component inclusion or exclusion components were classified in the The ISE proposes to amend its rules criteria. Rather, the inclusion and following ten market sectors, along with to provide for the listing and trading on exclusion criteria for the S&P MidCap their respective weightings in the Index: the Exchange of cash-settled, European- 400 Index and the S&P SmallCap 600 Energy (6.37%); Materials (4.32%); style Index Options. Specifically, the Index determine the components of the Industrials (13.96%); Consumer Exchange proposes to list and trade S&P 1000. Discretionary (18.52%); Consumer Reduced Value Index Options, Micro The components of the S&P MidCap Staples (4.45%); Health Care (12.15%); Index Options, long-term Reduced 400 Index and the S&P SmallCap 600 Financials (18.15%); Information Value Index Options, and long-term Index are chosen on the basis of market Technology (16.06%); Micro Index Options.5 capitalization, liquidity and industry Telecommunications Services (0.51%); Index Design and Composition group representation. The criteria for a and Utilities (5.51%).11 A complete list component to be added to the S&P of the 1000 component stocks in the The S&P 1000 is a market MidCap 400 Index and the S&P 6 Index is available at the Exchange, on capitalization-weighted index. The S&P SmallCap 600 Index (and as a result, to 1000 is a combination of the S&P the Exchange’s Web site, and on S&P’s Web site. MidCap 400 Index and the S&P 7 See S&P 1000 Index description published by As set forth in Exhibit B to the Standard & Poor’s (‘‘S&P’’) on S&P’s Web site at 5 Under ISE Rule 506, ‘‘Long-Term Options www.standardandpoors.com. proposal, as of February 18, 2004, the Contracts,’’ the ISE may list long-term options that 8 See Amendment No. 2, supra note 4. expire from 12 to 39 months from the time they are 9 See Exchange Act Release Nos. 48587 (October 10 See S&P’s Web site at listed. 2, 2003), 68 FR 58154 (October 8, 2003) (order www.standardandpoors.com under a link entitled 6 The calculation of a market capitalization- approving File No. SR–ISE–2003–18) (approving ‘‘Index Methodology, Criteria for Additions to and weighted index involves taking the summation of the listing and trading of options on the S&P Deletions from a U.S. Index.’’ the product of the price of each stock in the index SmallCap 600 Index); and 49696 (May 13, 2004), 69 11 These calculations are based on the index and the shares outstanding for each issue. In FR 28962 (May 19, 2004) (order approving File No. descriptions of the S&P MidCap 400 and the S&P contrast, a price-weighted index involves taking the SR–ISE–2004–08) (approving the listing and trading SmallCap 600 on S&P’s Web site at summation of the prices of the stocks in the index. of options on the S&P MidCap 400 Index). www.standardandpoors.com.

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Index had the following characteristics: shares; (vii) regarding options eligibility, The Exchange does not intend to trade (i) The total capitalization of all of the (a) 98.95% of the Index’s components options on any provisional index components in the Index was $1.474 were options eligible, as measured by calculated during the transition period. trillion; (ii) regarding component weighting, and (b) 98.4% of the Index’s Further, based on conversations with capitalization, (a) the highest components were options eligible, as S&P, the Exchange does not expect that capitalization of a component was measured by number. any securities or futures exchange will $11.801 billion (Gilead Sciences Corp.), The S&P 1000 Index is presently a trade products on any provisional index (b) the lowest capitalization of a ‘‘full’’ market capitalization-weighted during the transition period. S&P has component was $72.109 million (Huffy index. That is, the value of the Index is stated that, notwithstanding the Corp.), (c) the mean capitalization of the calculated by multiplying, for each simultaneous calculation of provisional components was $1.474 billion, (d) and component, the total number of shares indexes, there will still be only one the median capitalization of the outstanding by the price per share, official set of S&P indexes. components was $1.019 billion; (iii) adding these values together, and During the transition period, S&P will regarding component price per share, (a) dividing the result by the Index divisor. adjust the divisor of the indexes to the highest price per share of a However, on March 1, 2004, S&P maintain continuity across the component was $910.04 (Washington announced that it would shift the S&P adjustments. Therefore, as a result of the Post Co.), (b) the lowest price per share 500 Index, S&P MidCap 400 Index, S&P divisor adjustments, the Index value of a component was $3.40 (Milacron SmallCap 600 Index, and its other U.S. will maintain continuity immediately Inc.), (c) the mean price per share of the indexes to ‘‘float-adjusted’’ market following both adjustments (in March components was $30.76, (d) and the capitalization weighting.12 After the 2005 and September 2005). Because the Index value will maintain continuity, median price per share of the transition to float-adjusted market the value of options traded on the Index components was $27.61; (iv) regarding capitalization weighting, the value of will not change as a direct result of the component weightings, (a) the highest the Index will be calculated by float adjustment. S&P does not expect weighting of a component was 0.80% multiplying, for each component, the any companies to be removed from the (Gilead Sciences Corp.), (b) the lowest number of shares in the public float of Index as a result of the adjustments. weighting of a component was 0.005% the component by the price per share, Adjusting the divisor ensures that the (Huffy Corp.), (c) the mean weighting of adding these values together, and Index level is affected by the the components was 0.10%, (d) the dividing the result by the Index divisor. performance of individual components, median weighting of the components S&P will implement the transition from full market capitalization rather than by share changes or was 0.07%, and (e) the total weighting component replacements. of the top five highest weighted weighting to float-adjusted market capitalization weighting over an 18- The Exchange expects S&P’s float components (Gilead Sciences Corp., adjustment to adjust for cross-holdings month period. In September 2004, S&P M&T Bank Corp., New York Community and insider holdings. The Exchange will began publishing procedures and float Bancorp Inc., Coach Inc., and D.R. provide a link on its Internet Web site adjustment factors and will begin Horton Inc.) was 3.14%; (v) regarding to the page on S&P’s Web site page calculating provisional float adjusted component available shares (public where float adjustment information will indexes. The float adjustment factors float), (a) the most available shares of a be displayed. component was 416.90 million shares include, among other things, According to the ISE, changes to the (Amtel Corp.), (b) the least available information regarding the adjustments indexes have already been widely shares of a component is 3.3 million that will be made to each component to discussed. Major broker-dealers, shares (Haggar Corp.), (c) the mean determine what each component’s float including Merrill Lynch, Morgan available shares of the components was will be. At that time, S&P will begin Stanley, Lehman Brothers, JP Morgan, 45.78 million shares, (d) and the median calculating provisional indexes and others, have performed research available shares of the components was alongside of the regular indexes so that and published material regarding the 32.80 million shares; (vi) regarding the passive indexers (institutional investors changes. Attached as Exhibit E to the six-month average daily volumes of the that model their portfolio construction proposal are copies of some of that components, (a) the highest six-month and weighting according to S&P research. S&P intends to publish more average daily volume of a component indexes) can control the timing of detailed procedures for the adjustments was 12.326 million shares (Rf Micro adjustments. in September 2004, well before it begins Devices Inc.), (b) the lowest six month- In March 2005, the official index making its first set of changes in March average daily volume of a component series for S&P’s U.S. indexes will shift 2005. S&P also intends to announce all was 6,910 shares (Green Mountain to partial float adjustment, using float related information by press release and Power Corp.), (c) the mean six-month adjustment factors that represent half of to post that information to its Web site. average daily volume of the components the total adjustment, based on the Due to current and anticipated coverage, was 466,190 shares, (d) the median six- information published in September the Exchange does not believe that the month average daily volume of the 2004. In September 2005, the shift to adjustment will surprise investors. components was 252,180 shares, (e) the float adjustment will be completed, the On March 18, 2004, the Index value six-month average daily volumes of the official indexes will be fully float- was 3,370.88. The Exchange believes five most heavily traded components adjusted, and the provisional indexes that this level is too high for successful was 7.479 million shares (Rf Micro will be discontinued. Float adjustment options trading. Accordingly, the Devices Inc. (12.326 million shares), factors will be reviewed annually in Exchange proposes to base trading in Amtel Corp. (8.69 million shares), 3Com September.13 Index options on fractions of the Index Corp. (5.76 million shares), Sandisk value. In particular, the Exchange Corp. (5.50 million shares), E*Trade 12 See S&P’s press release dated March 1, 2004, proposes to list (i) Reduced Value S&P Financial Corp. (5.11 million shares)), (‘‘Press Release’’) on S&P’s Web site at http:// 1000 Options that are based on one- www.standardandpoors.com. As indicated below, and (f) 93.6%, or 936 out of 1000, of the the ISE expects S&P’s float adjustment to adjust for tenth of the value of the Index, and (ii) Index’s components had a six-month cross-holdings and insider holdings. Micro S&P 1000 Options that are based average daily volume of at least 50,000 13 See Press Release, supra note 12. on one one-hundredth of the value of

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the Index.14 The Exchange believes that changes in the number of common the Index is represented by component listing options on reduced values of the shares outstanding for component securities having a market value of less Index will attract a greater source of stocks, company additions or deletions, than $75 million; (iii) less than 80% of customer business than if options were corporate restructurings and other the weight of the Index is represented based on the full value of the Index. The capitalization changes. by component securities that are eligible Exchange also believes that listing S&P will calculate the settlement for options trading pursuant to ISE Rule options on reduced values of the Index value for purposes of settling Reduced 502; (iv) 10% or more of the weight of will provide an opportunity for Value S&P 1000 Options (‘‘Reduced the Index is represented by component investors to hedge, or speculate on, the Value Settlement Value’’) and Micro securities trading less than 20,000 market risk associated with the stocks S&P 1000 Options (‘‘Micro Settlement shares per day; or (v) the largest comprising the Index. Further, by Value’’) on the basis of opening market component security accounts for more reducing the values of the Index, the ISE prices on the business day prior to the than 15% of the weight of the Index or notes that investors will be able to expiration date of such options the largest five components in the utilize this trading vehicle, while (‘‘Settlement Day’’).17 The Settlement aggregate account for more than 50% of extending a smaller outlay of capital. Day is normally the Friday preceding the weight of the Index. The Exchange believes that this should ‘‘Expiration Saturday.’’ 18 In the event The Exchange will notify the Division attract additional investors, and, in turn, that a component security in the Index immediately in the event S&P create a more active and liquid trading does not trade on Settlement Day, the determines to cease maintaining or environment.15 closing price from the previous trading calculating the Index or in the event the day is used to calculate the Settlement Index values are not disseminated every Index Calculation and Index 15 seconds by a widely available source. Maintenance Value. Accordingly, trading in Reduced Value S&P 1000 Options and Micro S&P In the event the Index ceases to be The values of the Reduced Value S&P 1000 Options will normally cease on the maintained or calculated, or 1000 Index and the Micro S&P 1000 Thursday preceding an Expiration disseminated every 15 seconds by a Index will each be calculated Saturday. S&P will calculate, and the widely available source, the Exchange continuously, using the last sale price Exchange will disseminate, both the agrees not to list any additional series for each component stock in the Index, Reduced Value Settlement Value and for trading and agrees to limit all and will be disseminated every 15 19 transactions in such options to closing 16 the Micro Settlement Value. seconds throughout the trading day. S&P will monitor and maintain the transactions only for the purpose of To calculate the full Index value, the S&P 1000. S&P is responsible for making maintaining a fair and orderly market sum of the market value of the stocks in 21 all necessary adjustments to the Index to and protecting investors. the Index is divided by the base period reflect component deletions, share market value (divisor), and the result is Contract Specifications changes, stock splits, stock dividends multiplied by 100. To calculate the The contract specifications for both (other than an ordinary cash dividend), value of the Reduced Value S&P 1000, Reduced Value S&P 1000 Options and and stock price adjustments due to the full Index value is divided by ten. Micro S&P 1000 Options are set forth in restructuring, mergers, or spin-offs To calculate the value of the Micro S&P Exhibit C to the proposal. The ISE involving the underlying components. 1000, the full Index value is divided by proposes to characterize the Index as a Some corporate actions, such as stock 100. To provide continuity for the broad-based index, as defined in ISE splits and stock dividends, require Index’s value, the divisor is adjusted Rule 2001(j).22 Options on the Index are simple changes to the available shares periodically to reflect such events as European-style and A.M. cash-settled. outstanding and the stock prices of the The Exchange’s standard trading hours 14 As noted above, the ISE also proposes to list underlying components. Other for index options (9:30 a.m. to 4:15 p.m., long-term Reduced Value S&P 1000 Options and corporate actions, such as share New York time), as set forth in ISE Rule long-term Reduced Value Micro S&P 1000 Options. issuances, change the market value of 2008(a), will apply to Index Options. 15 The concept of listing reduced value options on the Index and would require a change Exchange rules that are applicable to the an index is not a novel one. See, e.g., Securities in the Index divisor to effect Exchange Act Release Nos. 32893 (September 14, trading of options on broad-based 1993), 58 FR 49070 (September 21, 1993) (order adjustments. indexes will apply to the trading of approving File No. SR–CBOE–93–12) (approving Although the Exchange is not Index Options.23 Specifically, among the listing and trading of options based on one- involved in the maintenance of the others, Exchange rules governing margin tenth the value of the S&P 500 Index); 43000 (June Index, the Exchange represents that it 30, 2000), 65 FR 42409 (July 10, 2000) (notice of requirements and trading halt filing and immediate effectiveness of File No. SR– will monitor the Index on a quarterly procedures that are applicable to the CBOE–00–15) (listing and trading of options based basis and will notify the staff in the trading of broad-based index options on one-tenth of the value of the Nasdaq 100 Index); Commission’s Division of Market will apply to Index Options. and 48681 (October 22, 2003), 68 FR 62337 Regulation (‘‘Division’’), pursuant to (November 3, 2003) (order approving File No. SR– The Exchange proposes to establish CBOE–2003–14) (approving the listing and trading filing a proposed rule change pursuant aggregate position limits for options on of options based on one-tenth of the value of the to Rule 19b–4,20 if: (i) The number of the Reduced Value S&P 1000 Index at NYSE Composite Index). securities in the Index drops by 1⁄3 or 50,000 Reduced Value S&P 1000 16 The values of the Reduced Value S&P 1000 and more; (ii) 10% or more of the weight of contracts on the same side of the the Micro S&P 1000 will be calculated by S&P and disseminated to Reuters. The Exchange will receive market, provided no more than 30,000 17 those values from Reuters and disseminate them The aggregate exercise value of the option of such Reduced Value S&P 1000 every 15 seconds between the hours of 9:30 a.m. contract is calculated by multiplying the Index contracts are in the nearest expiration value by the Index multiplier, which is 100. and 4:15 p.m. to the Options Price Reporting month series. The Exchange also Authority (‘‘OPRA’’) and to its members. The Index 18 For any given expiration month, the Index is published daily in, among other places, The Wall Options will expire on the third Saturday of the Street Journal and The New York Times, and is month. 21 21 Id. available during trading hours from quotation 19 See Amendment No. 2, supra note 4. 22 ISE Rule 2001(j) defines a ‘‘market index’’ or a vendors such as Reuters. Telephone conversation 20 Telephone conversation between Joseph W. ‘‘broad-based index’’ to mean an index designed to between Joseph W. Ferraro III, Assistant General Ferraro III, Assistant General Counsel, ISE, and be representative of a stock market as a whole or Counsel, ISE, and Florence Harmon, Senior Special Florence Harmon, Senior Special Counsel, Division, of a range of companies in unrelated industries. Counsel, Division, Commission (November 9, 2004). Commission (November 9, 2004). 23 See ISE Rules 2000 through 2012.

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proposes to establish aggregate position months to expiration may be traded.26 provided to the Commission limits for options on the Micro S&P The interval between expiration months information in a confidential 1000 Index at 500,000 Micro S&P 1000 for Reduced Value S&P 1000 Index submission that supports its system contracts on the same side of the Options or Micro S&P 1000 Index capacity representations. market, provided that no more than Options will not be less than six 2. Statutory Basis 300,000 of the S&P 1000 Index contracts months. The trading of any long-term are in the nearest expiration month Reduced Value S&P 1000 Options and The Exchange believes that the series. Reduced Value S&P 1000 Micro S&P 1000 Options will be subject proposed rule change is consistent with contracts will be aggregated with Micro to the same rules that govern the trading Section 6(b) of the Act,27 in general, and S&P 1000 contracts, where 10 Micro of all the Exchange’s index options, furthers the objectives of Section S&P 1000 contracts equal one Reduced including sales practice rules, margin 6(b)(5),28 in particular, in that it will Value S&P 1000 contract. These limits requirements, and trading rules. permit trading in both Reduced Value are similar to the limits applicable to Except for the further reduced value S&P 1000 Options and Micro S&P 1000 options on the Russell 2000 Index, a given to the Micro S&P 1000 Options, Options pursuant to rules designed to similarly capitalized index.24 all of the specifications and calculations prevent fraudulent and manipulative The Exchange proposes to apply for the Micro S&P 1000 Options will be acts and practices and promote just and broad-based index margin requirements the same as those used for the Reduced equitable principals of trade. for the purchase and sale of Index Value S&P 1000 Options. The Micro Options. Accordingly, purchases of put A. Self-Regulatory Organization’s S&P 1000 Options will trade Statement on Burden on Competition or call Index Options with nine months independently of and in addition to the or less until expiration must be paid for Reduced Value S&P 1000 Options, and The ISE believes that the proposed in full. Writers of uncovered put or call both products will be subject to the rule change does not impose any burden Index Options must deposit/maintain same rules that presently govern the on competition. 100% of the option proceeds, plus 15% trading of Exchange index options, B. Self-Regulatory Organization’s of the aggregate contract value (current including sales practice rules, margin Index level × $100), less any out-of-the- Statement on Comments on the requirements, trading rules, and Proposed Rule Change Received From money amount, subject to a minimum of position and exercise limits. the option proceeds plus 10% of the Members, Participants or Others aggregate contract value. Surveillance and Capacity The Exchange has not solicited, and The Exchange proposes to set strike The Exchange represents that it has an does not intend to solicit, comments on price intervals at 21⁄2 points for certain adequate surveillance program in place this proposed rule change. The near-the-money series in near-term for Index Options and intends to apply Exchange has not received any expiration months when the Index is at those same program procedures that it unsolicited written comments from a level below 200, and 5-point strike applies to the Exchange’s other index members or other interested parties. price intervals for other Index Options options. Additionally, the Exchange is a III. Date of Effectiveness of the series with expirations up to one year, member of the Intermarket Surveillance and 25-to 50-point strike price intervals Proposed Rule Change and Timing for Group (‘‘ISG’’) under the Intermarket Commission Action for longer-term Index Options. Surveillance Group Agreement, dated Accordingly, because the current June 20, 1994. The members of the ISG Within 35 days of the date of Reduced Value S&P 1000 level is 337.1, include all of the U.S. registered stock publication of this notice in the Federal the Exchange will set strike price and options markets: the Amex, the Register or within such longer period (i) intervals at five points for Reduced Boston Stock Exchange, the Chicago as the Commission may designate up to Value S&P 1000 Options. Because the Board Options Exchange, the Chicago 90 days of such date if it finds such current Micro S&P 1000 level is 33.71, Stock Exchange, the National Stock longer period to be appropriate and the Exchange will set strike price Exchange, the NASD, the NYSE, the publishes its reasons for so finding or intervals at 21⁄2 points for Micro S&P Pacific Stock Exchange and the (ii) as to which the Exchange consents, 1000 Options. The minimum tick size Philadelphia Stock Exchange. The ISG the Commission will: for series trading below $3 will be 0.05, members work together to coordinate (A) By order approve such proposed and for series trading at or above $3 the surveillance and investigative rule change; or minimum tick size will be 0.10. information sharing in the stock and (B) Institute proceedings to determine The Exchange proposes to list both options markets. In addition, the major whether the proposed rule change Reduced Value S&P 1000 Options and futures exchanges are affiliated should be disapproved. Micro S&P 1000 Options in the three members of the ISG, which allows for IV. Solicitation of Comments consecutive near-term expiration the sharing of surveillance information months plus up to three successive for potential intermarket trading abuses. Interested persons are invited to expiration months in the March cycle. The Exchange represents that it has submit written data, views, and For example, consecutive expirations of the system capacity to adequately arguments concerning the foregoing, January, February, March, plus June, handle all series that would be including whether the proposed rule September, and December expirations permitted to be added by this proposal change, as amended, is consistent with 25 would be listed. In addition, long-term (including LEAPS). The Exchange the Act. Comments may be submitted by Index Options series having up to 39 any of the following methods: 26 See ISE Rule 2009(b)(1). The Exchange is not Electronic Comments 24 The same limits that apply to position limits listing reduced value LEAPS on either of the shall apply to exercise limits for these products. Reduced Value S&P 1000 Indexes or Reduced Value • Use the Commission’s Internet Telephone conversation between Joseph W. Ferraro Micro S&P 1000 Indexes pursuant to ISE Rule comment form (http://www.sec.gov/ III, Associate General Counsel, ISE, Florence 2009(b)(2). Telephone conversation between Joseph Harmon, Senior Special Counsel, and A. Michael W. Ferraro III, Associate General Counsel, ISE, rules/sro.shtml); or Pierson, Attorney, Division, Commission Florence Harmon, Senior Special Counsel, and A. (November 16, 2004). Michael Pierson, Attorney, Division, Commission 27 15 U.S.C. 78f(b). 25 See ISE Rule 2009(a)(3). (November 16, 2004). 28 15 U.S.C. 78f(b)(5).

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• Send e-mail to rule- SECURITIES AND EXCHANGE II. Self-Regulatory Organization’s [email protected]. Please include File COMMISSION Statement of the Purpose of, and Number SR–ISE–2004–09 on the subject Statutory Basis for, the Proposed Rule line. [Release No. 34–50670; File No. SR–NASD– Change 2004–167] Paper Comments In its filing with the Commission, Nasdaq included statements concerning • Send paper comments in triplicate Self-Regulatory Organizations; Notice the purpose of and basis for the to Jonathan G. Katz, Secretary, of Filing and Immediate Effectiveness proposed rule change and discussed any Securities and Exchange Commission, of Proposed Rule Change and comments it received on the proposed 450 Fifth Street, NW., Washington, DC Amendment No. 1 Thereto by the rule change. The text of these statements 20549–0609. National Association of Securities Dealers, Inc. To Establish Combined may be examined at the places specified All submissions should refer to File Nasdaq Market Center and Brut Pricing in item IV below. Nasdaq has prepared Number SR–ISE–2004–09. This file for NASD Members summaries, set forth in sections A, B, number should be included on the and C below, of the most significant subject line if e-mail is used. To help the November 16, 2004. aspects of such statements. Commission process and review your Pursuant to Section 19(b)(1) of the A. Self-Regulatory Organization’s comments more efficiently, please use Securities Exchange Act of 1934 Statement of the Purpose of, and only one method. The Commission will (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Statutory Basis for, the Proposed Rule post all comments on the Commission’s notice is hereby given that on October Change Internet Web site (http://www.sec.gov/ 29, 2004, the National Association of rules/sro.shtml). Copies of the Securities Dealers, Inc. (‘‘NASD’’), 1. Purpose submission, all subsequent through its subsidiary, The Nasdaq amendments, all written statements Stock Market, Inc. (‘‘Nasdaq’’), filed Nasdaq is proposing to establish a with respect to the proposed rule with the Securities and Exchange new pricing and rebate schedule for change that are filed with the Commission (‘‘Commission’’) the NASD members for Nasdaq-listed Commission, and all written proposed rule change as described in securities that spans activity on both the communications relating to the items I, II, and III below, which items NMC and Brut. The fee and rebate proposed rule change between the have been prepared by Nasdaq. On structure is based on multiple volume- Commission and any person, other than November 8, 2004, Nasdaq submitted based usage tiers that take into account those that may be withheld from the Amendment No. 1 to the proposed rule the combined NMC and Brut volume of public in accordance with the change.3 Nasdaq has designated this a member. A member will pay varying provisions of 5 U.S.C. 552, will be proposal as one establishing or changing fees for having orders routed away from available for inspection and copying in a due, fee or other charge imposed by the systems or when accessing liquidity the Commission’s Public Reference the self-regulatory organization under (‘‘take-outs’’) based upon the member’s 4 Section, 450 Fifth Street, NW., Section 19(b)(3)(A)(ii) of the Act and combined volume activity in the NMC Rule 19b–4(f)(2) thereunder,5 which Washington, DC 20549. Copies of such and Brut. renders the proposal effective upon filing also will be available for filing with the Commission. The Likewise, rebates for providing inspection and copying at the principal Commission is publishing this notice to liquidity will be based on the combined office of the ISE. All comments received solicit comments on the proposed rule total of liquidity provided to both will be posted without change; the change, as amended, from interested systems. Nasdaq believes that this Commission does not edit personal persons. pricing structure will encourage activity identifying information from on both the NMC and Brut and will not submissions. You should submit only I. Self-Regulatory Organization’s provide financial incentives to use one information that you wish to make Statement of the Terms of Substance of system versus the other. The new available publicly. All submissions the Proposed Rule Change combined NMC/Brut fee structure for should refer to File Number SR–ISE– Nasdaq proposes to establish a new Nasdaq-listed securities is provided 2004–09 and should be submitted on or pricing and rebate schedule for NASD below: before December 13, 2004. members that spans activity on both the For the Commission, by the Division of Nasdaq Market Center (‘‘NMC’’) and REBATE SCHEDULE FOR EXECUTIONS Market Regulation, pursuant to delegated Nasdaq’s Brut Facility (‘‘Brut’’), to be IN NASDAQ MARKET CENTER AND authority.29 implemented on November 1, 2004. The BRUT Margaret H. McFarland, text of the proposed rule change, as Deputy Secretary. amended, is available at the Office of Average daily shares of li- Liquidity pro- the Secretary, Nasdaq, and at the vider rebate [FR Doc. E4–3274 Filed 11–19–04; 8:45 am] quidity provided on NASDAQ Commission. and/or BRUT per share BILLING CODE 8010–01–P executed

1 15 U.S.C. 78s(b)(1). Greater than 20 million ...... $0.0025 2 17 CFR 240.19b–4. Between 1–20 million ...... 0.0022 3 See letter from Edward S. Knight, Executive Less than or equal to 1 mil- Vice President and General Counsel, Nasdaq, to lion ...... 0.0020 Katherine A. England, Assistant Director, Division of Market Regulation, Commission, dated November 8, 2004 (‘‘Amendment No. 1’’). Amendment No. 1 made technical corrections to the proposed rule text of the originally filed proposed rule change. 4 15 U.S.C. 78s(b)(3)(A)(ii). 29 17 CFR 200.30–3(a)(12). 5 17 CFR 240.19b–4(f)(2).

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FEE SCHEDULE FOR TAKE-OUT AND III. Date of Effectiveness of the available for inspection and copying in ROUTING Proposed Rule Change and Timing for the Commission’s Public Reference Commission Action Section, 450 Fifth Street, NW., Washington, DC 20549. Copies of such Average daily shares of li- Fee to take The forgoing rule change is subject to quidity provided on NASDAQ liquidity/Brut Section 19(b)(3)(A)(ii) of the Act 8 and filing also will be available for routing fee 9 inspection and copying at the principal and/or BRUT (per share) subparagraph (f)(2) of Rule 19b–4 thereunder because it establishes or office of the NASD. All comments Greater than 10 million ...... 0.0027 changes a due, fee, or other charge received will be posted without change; Greater than 500,000 but imposed by the self-regulatory the Commission does not edit personal less than or equal to 10 organization. Accordingly, the proposal identifying information from million ...... 0.0028 is effective upon Commission receipt of submissions. You should submit only Less than or equal to the filing. At any time within 60 days information that you wish to make 500,000 ...... 0.0030 of the filing of such proposed rule available publicly. All submissions change, the Commission may summarily should refer to File Number SR— NASD–2004–167 and should be Nasdaq represents that it will abrogate such rule change if it appears submitted on or before December 13, continue to charge a $0.001 per share to the Commission that such action is 2004. NMC order delivery charge on NMC necessary or appropriate in the public orders delivered to fee-charging ECNs interest, for the protection of investors, For the Commission, by the Division of Market Regulation, pursuant to delegated participating in NMC. This charge is or otherwise in furtherance of the 10 authority.11 currently capped at $10,000 per month purposes of the Act. Margaret H. McFarland, for firms providing more than 500,000 IV. Solicitation of Comments Deputy Secretary. shares per day, on average, over the Interested persons are invited to [FR Doc. E4–3272 Filed 11–19–04; 8:45 am] course of the month. Nasdaq also submit written data, views, and BILLING CODE 8010–01–P represents that, in conjunction with the arguments concerning the foregoing, adoption of this pricing structure, Brut including whether the proposed rule will cease charging an access fee on change is consistent with the Act. SECURITIES AND EXCHANGE orders delivered to it from the NMC. In Comments may be submitted by any of COMMISSION addition, Nasdaq represents that it the following methods: currently does not charge when a firm [Release No. 34–50667; File No. SR–NYSE– Electronic Comments 2004–05] executes against its own quote or order. • Nasdaq represents that, upon the Use the Commission’s Internet Self-Regulatory Organizations; Notice implementation of the above pricing comment form (http://www.sec.gov/ of Filing of Amendment Nos. 2 and 3 rules/sro.shtml); or schedule, Nasdaq will begin charging • to a Proposed Rule Change by the New for these executions at the rates listed Send an e-mail to rule- York Stock Exchange, Inc. Relating to [email protected]. Please include File above. Enhancements to the Exchange’s Number SR–NASD–2004–167 on the Existing Automatic Execution Facility 2. Basis subject line. Pilot (NYSE Direct+) Paper Comments Nasdaq believes that the proposed November 15, 2004. rule change, as amended, is consistent • Send paper comments in triplicate Pursuant to Section 19(b)(1) of the with the provisions of Section 15A of to Jonathan G. Katz, Secretary, Securities Exchange Act of 1934, the Act,6 in general, and with Section Securities and Exchange Commission, (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 15A(b)(5) of the Act,7 in particular, in 450 Fifth Street, NW., Washington, DC notice is hereby given that on November that the proposed rule change provides 20549–0609. All submissions should 8, 2004, the New York Stock Exchange, for the equitable allocation of reasonable refer to File Number SR–NASD–2004– Inc. (‘‘NYSE’’ or ‘‘Exchange’’) filed with dues, fees, and other charges among 167. This file number should be the Securities and Exchange members. included on the subject line if e-mail is Commission (‘‘Commission’’) used. To help the Commission process Amendment No. 2 3 to a proposed rule B. Self-Regulatory Organization’s and review your comments more change as described in Items I, II and III Statement on Burden on Competition efficiently, please use only one method. below, which Items have been prepared The Commission will post all comments by the NYSE. On November 9, 2004, the Nasdaq does not believe that the on the Commission’s Internet Web site NYSE filed Amendment No. 3 to the proposed rule change, as amended, will (http://www.sec.gov/rules/sro.shtml). proposed rule change.4 The Commission result in any burden on competition that Copies of the submission, all subsequent is publishing this notice to solicit is not necessary or appropriate in amendments, all written statements comments on the proposed rule change furtherance of the purposes of the Act. with respect to the proposed rule C. Self-Regulatory Organization’s change that are filed with the 11 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). Statement on Comments on the Commission, and all written communications relating to the 2 17 CFR 240.19b–4. Proposed Rule Change Received From 3 proposed rule change between the See Form 19b–4 dated November 8, 2004 Members, Participants, or Others (‘‘Amendment No. 2’’). Amendment No. 2 Commission and any person, other than supplements the description of certain aspects of Nasdaq states that written comments those that may be withheld from the the Exchange’s hybrid market and proposes were neither solicited nor received. public in accordance with the additional amendments to the Exchange’s rules. provisions of 5 U.S.C. 552, will be 4 See Partial amendment dated November 9, 2004 (‘‘Amendment No. 3’’). In Amendment No. 3, the NYSE submitted the proposed rule changes in the 8 15 U.S.C. 78s(b)(3)(A)(ii). format required in Exhibit 5 to the Form 19b–4, 6 15 U.S.C. 78o–3. 9 17 CFR 240.19b–4(f)(2). which was inadvertently omitted from Amendment 7 15 U.S.C. 78o–3(b)(5). 10 15 U.S.C. 78s(b)(3)(C). No. 2.

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as amended by Amendment Nos. 2 and the proposed rule change, as amended (f) An elected or converted percentage 3 from interested persons. by Amendment Nos. 2 and 3. Proposed order that is convertible on a The proposed rule change was filed new language is italicized; proposed destabilizing tick and for which the on February 9, 2004 and amended by deletions are in brackets.9 Furthermore, entering broker has granted permission Amendment No. 1 on August 2, 2004.5 examples of trading under the proposed for the specialist to be on parity with the The proposed rule change as amended rules are attached hereto as Exhibit A. order; or by Amendment No. 1 was published for * * * * * (g) A part of round lot order (PRL); or comment in the Federal Register on (h) Orders initially eligible for August 16, 2004.6 On August 26, 2004, Definitions of Orders automatic execution that have been the Commission extended the public Rule 13 cancelled and replaced in a stock, comment period with respect to the Investment Company Unit (as defined Notice to September 22, 2004.7 The * * * * * by paragraph 703.16 of the Listed Commission received 15 comment All or None Order Company Manual), or Trust Issued 8 Receipt (as defined in Rule 1200), letters with respect to the Notice. A market or limited price order subject to [a limit order of 1099 shares [which] designated all or none is to be I. Self-Regulatory Organization’s or less priced at or above the Exchange’s executed in its entirety or not at all, but, Statement of the Terms of Substance of published offer (in the case of an order unlike a fill or kill order, is not to be the Proposed Rule Change to buy) or at or below the Exchange’s treated as cancelled if not executed as The Exchange proposes amendments published bid (in the case of an order to to its rules governing NYSE Direct+ soon as it is represented in the Trading sell), which a member or member (‘‘Direct+’’), which were originally Crowd or automatically executed in organization has entered for] automatic proposed in the Notice, supplements the accordance with, and to the extent execution in accordance with, and to description of certain aspects of the provided by, Exchange Rules 1000– the extent provided by, Exchange Rules Exchange’s hybrid market, and proposes 1004. The making of ‘‘all or none’’ bids 1000–1004[5]. additional amendments to the or offers in stocks is prohibited and the [Pursuant to a pilot program to run Exchange’s rules. Below is the text of making of ‘‘all or none’’ bids or offers until December 23, 2004, orders in in bonds is subject to the restrictions of Investment Company Units (as defined 5 See letter from Darla C. Stuckey, Corporate Rule 61 and Rule 86. in paragraph 703.16 of the Listed Secretary, NYSE, to Nancy J. Sanow, Assistant * * * * * Company Manual), or Trust Issued Director, Division of Market Regulation (‘‘Division’’), Commission, dated July 30, 2004, and Auction Limit Order Receipts (as defined in Rule 1200) may accompanying Form 19b–4, which replaced the be entered as limit orders in an amount original filing in its entirety (‘‘Amendment No. 1’’). An auction limit order is an order that greater than 1099 shares. The pilot 6 See Securities Exchange Act Release No. 50173 provides an opportunity for price program shall provide for a gradual, (August 10, 2004), 69 FR 50407 (‘‘Notice’’). improvement. 7 phased-in raising of order size See Securities Exchange Act Release No. 50277 The limit price of an auction limit eligibility, up to a maximum of 10,000 (August 26, 2004), 69 FR 53759 (September 2, order to buy should be at or above the 2004). shares. Each raising of order size 8 See letter to William Donaldson, Chairman, Exchange best offer at the time the order eligibility shall be preceded by a Commission, from Donald E. Weeden, dated August is entered on the Exchange. The limit minimum of a one-week advance notice 31, 2004; letters to the Commission from: Kim Bang, price of an auction limit order to sell to the Exchange’s membership.] President and Chief Executive Officer, Bloomberg should be at or below the Exchange best Tradebook LLC, dated September 22, 2004; and Eric * * * * * D. Roiter, Senior Vice President and General bid at the time the order is entered on Counsel, Fidelity Management & Research the Exchange. Immediate or Cancel Order Company, dated October 26, 2004; letters to An auction limit order shall be quoted A market or limited price order Jonathan G. Katz, Secretary, Commission, from: Ari and executed in accordance with Burstein, Associate Counsel, Investment Company [which] designated immediate or cancel Institute, dated September 22, 2004; Donald D. Exchange Rules 15A.50, 123F and is to be executed [in whole or in part] Kittell, Executive Vice President, Securities 79A.15. to the extent possible as soon as such Industry Association, dated October 1, 2004; Ellen L.S. Koplow, Executive Vice President and General Auto Ex Order order is represented in the Trading Crowd or automatically executed in Counsel, Ameritrade, Inc., dated September 22, An auto ex order is: 2004; Bruce Lisman, Bear, Stearns & Co., Inc., dated (a) A market order designated for accordance with, and to the extent September 28, 2004; Edward J. Nicoll, Chief provided by, Exchange Rules 1000– automatic execution or a limit order to Executive Officer, Instinet Group Incorporated, 1004, and the portion not so executed is dated October 25, 2004; Thomas Peterffy and David buy (sell) priced at or above (below) the to be treated as cancelled. For the M. Battan, the Interactive Brokers Group, dated Exchange best offer (bid) at the time September 7, 2004; and Lisa M. Utasi, President and purposes of this definition, a ‘‘stop’’ is Kimberly Unger, Executive Director, the Security such order is routed to the Display  considered an execution. Traders Association of New York, Inc., dated Book or; A ‘‘commitment to trade’’ received September 22, 2004; and letter to Annette L. (b) An immediate or cancel order; or Nazareth, Director, Division, Commission, and (c) An elected stop or stop limit order [on the Floor] through ITS will be Robert L.D. Colby, Deputy Director, Division, systemically delivered to the Display automatically executable in accordance Commission, from Eric D. Roiter, Senior Vice with, and to the extent provided by, President and General Counsel, Fidelity Book; or Management & Research Company, dated August (d) A buy ‘‘minus’’, sell ‘‘plus’’ or Exchange Rules 1000–1004, and shall be 10, 2003. See e-mails to Nancy Reich Jenkins, short sale order systemically delivered treated in the same manner, and entitled Managing Director, Market Surveillance, NYSE, to the Display Book; or to the same privileges, as [would] an from George W. Mann Jr., Executive Vice President immediate or cancel order that [reaches and General Counsel, Boston Stock Exchange, Inc., (e) An all or none order; or dated September 22, 2004; and e-mails to the the Floor] is systemically delivered to Commission from: Jose L. Marques, Ph.D., 9 The rule text as set forth herein includes several the Display Book at the same time Managing Member, Telic Management LLC, dated minor technical revisions that the Exchange has except as otherwise provided in the September 21, 2004; Junius W. Peake, Monfort committed to correct by filing an amendment. Plan and except further that such a Distinguished Professor of Finance, Kenneth W. Telephone conversation between Cyndi Rodriguez, Monfort College of Business, University of Northern Special Counsel, Division, Commission, and Jeff commitment may not be ‘‘stopped.’’ Colorado, dated September 22, 2004; and James L. Rosenstrock, Senior Special Counsel, Market [and the commitment shall remain Rothenberg, Esq., dated August 30, 2004. Surveillance, NYSE, on November 15, 2004. irrevocable for the time period chosen

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by the sender of the commitment.] After portion shall be placed on the book at obtained is not lower than the last sale trading with the Exchange published bid the price of the electing sale, but if not if the last sale was a ‘‘plus’’ or ‘‘zero (offer), the unfilled balance of a executed, shall be cancelled and re- plus’’ tick, and is not lower than the last commitment to trade shall be entered on the book at the price of the sale plus the minimum fractional automatically reported to ITS as subsequent transactions on the change in the stock if the last sale was cancelled. Exchange, provided the price of such a ‘‘minus’’ or ‘‘zero minus’’ tick. A subsequent transactions is at or better limited price order to sell ‘‘plus’’ would Limit, Limited Order or Limited Price than the limit specified in the order. have the additional restriction of stating Order (c) ‘‘Buy Minus’’-‘‘Sell Plus’’ the lowest price at which it could be An order to buy or sell a stated Percentage Orders—The elected portion executed. amount of a security at a specified price, of an order to ‘‘buy minus’’ shall be Sell ‘‘plus’’ limit orders which are or at a better price, if obtainable after the executed only on a ‘‘minus’’ or ‘‘zero systemically delivered to the Display order is represented in the Trading minus’’ tick. Orders of this type must Book and sell ‘‘plus’’ market orders Crowd. also be qualified further by designating designated for automatic execution will A marketable limit order is an order a limit price. The elected portion of an be eligible to be automatically executed on the Exchange that can be order to ‘‘sell plus’’ shall be executed in accordance with, and to the extent immediately executed; that is, an order only on a ‘‘plus’’ or ‘‘zero plus’’ tick. provided by, Exchange Rules 1000–1004 to buy priced at or above the Exchange Orders so designated are handled in the consistent with the order’s instructions. best offer or an order to sell priced at same manner as an order to sell short. A market order to buy ‘‘minus’’ is a or below the Exchange best bid. (See Rule 123A.71) Orders of this type market order to buy a stated amount of A marketable limit order systemically must also be further qualified by a stock provided that the price to be delivered to the Display Book is an auto designating a limit price. obtained is not higher than the last sale ex order subject to automatic execution If so instructed by the entering if the last sale was a ‘‘minus’’ or ‘‘zero in accordance with, and to the extent broker(s), percentage orders to buy will minus’’ tick, and is not higher than the provided by, Exchange Rules 1000– be converted into regular limit orders last sale minus the minimum fractional 1004. for transactions effected on ‘‘minus’’ or change in the stock if the last sale was ‘‘zero minus’’ ticks. Conversely, if so a ‘‘plus’’ or ‘‘zero plus’’ tick. A limited Market Order instructed by the entering broker(s), price order to buy ‘‘minus’’ would have An order to buy or sell a stated percentage orders to sell will be the additional restriction of stating the amount of a security at the most converted into regular limit orders for highest price at which it could be advantageous price obtainable after the transactions effected on ‘‘plus’’ or ‘‘zero executed. order is represented in the Trading plus’’ ticks. Buy ‘‘minus’’ limit orders that are Crowd or systemically delivered to the If further instructed by the entering systemically delivered to the Display Display Book. broker(s), as provided in Rule 123A.30, Book and buy ‘‘minus’’ market orders A market order is not an auto ex order percentage orders to buy may be designated for automatic execution will unless so designated and shall be converted into regular limit orders for be eligible to be automatically executed quoted and executed in accordance with transactions on ‘‘plus’’ or ‘‘zero plus’’ in accordance with, and to the extent Exchange Rules 15A.50, 123F. ticks. Conversely, if so instructed by the provided by, Exchange Rules 1000–1004 A market order designated for entering broker(s), percentage orders to consistent with the order’s instructions. automatic execution is an auto ex order sell may be converted into regular limit and shall be executed in accordance orders for transactions on ‘‘minus’’ or with, and to the extent provided by, ‘‘zero minus’’ ticks. Stop Order Exchange Rules 1000–1004. (See also Rule 123A.30.) A stop order to buy becomes a market * * * * * (d) ‘‘Immediate Execution or Cancel order when a transaction in the security Election’’ Percentage Orders—The occurs at or above the stop price after Percentage Order elected portion of a percentage order the order is represented in the Trading A limited price order to buy (or sell) with this designation is to be executed Crowd. A stop order to sell becomes a 50% of the volume of a specified stock immediately in whole or in part at the market order when a transaction in the after its entry. There are four types of price of the electing transaction. Any security occurs at or below the stop percentage orders: elected portion not so executed shall be price after the order is represented in (a) Straight Limit Percentage Orders— deemed cancelled, and shall revert to its the Trading Crowd. Stop orders that are Such an order is elected when a status as an unelected percentage order systemically delivered to the Display transaction has occurred at the limit and be subject to subsequent election or Book will be eligible to be price or a better price. Unless otherwise conversion. automatically executed in accordance specified, only volume at or below the The converted portion of such a with, and to the extent provided by, limit subsequent to the receipt of the percentage order that is convertible on Exchange Rules 1000–1004 consistent order will be applied in determining the a destabilizing tick (a ‘‘CAP–DI order’’) with the order’s instructions. elected portion of buy orders. and which is systemically delivered to Conversely, only volume at or above the the Display Book will be eligible to be Stop Limit Order limit will be calculated in determining automatically executed in accordance A stop limit order to buy becomes a the elected portion of sell orders. with, and to the extent provided by, limit order executable at the limit price, (b) Last Sale Percentage Orders—The Exchange Rules 1000–1004 consistent or at a better price, if obtainable, when elected portion of an order designated with the order’s instructions. a transaction in the security occurs at or ‘‘last sale’’ shall be executed only at the * * * * * above the stop price after the order is last sale price or at a better price, represented in the Trading Crowd. A provided that such price is at or better Sell ‘‘Plus’’-Buy ‘‘Minus’’ Order stop limit order to sell becomes a limit than the limit specified in the order. If A market order to sell ‘‘plus’’ is a order executable at the limit price or at the order is further designated ‘‘last market order to sell a stated amount of a better price, if obtainable, when a sale-cumulative volume’’, the elected a stock provided that the price to be transaction in the security occurs at or

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below the stop price after the order is such other market center or centers as manually or when a liquidity represented in the Trading Crowd. Stop a commitment to trade any order or replenishment point (‘‘LRP’’) as defined limit orders that are systemically portion thereof that satisfies such better in Exchange Rule 1000 (a)(v)(A) has delivered to the Display Book will be published bid or offer, unless the been reached. eligible to be automatically executed in member entering the order indicates in After the specialist has gapped the accordance with, and to the extent such manner as required by the quotation, autoquote will resume with a provided by, Exchange Rules 1000–1004 Exchange that it is contemporaneously manual transaction or the publication of consistent with the order’s instructions. satisfying the better published bid or a non-gapped quotation. * * * * * offer. Autoquote will resume as soon as (Remainder of rule unchanged) * * * * * possible after a LRP has been reached, but in no more than five seconds, where ITS ‘‘Trade-Throughs’’ and ‘‘Locked Dissemination of Quotations the auto ex order that reached the LRP Markets’’ Rule 60 is executed in full, or any unfilled balance of such order is not capable of Rule 15A * * * * * trading at a price above (in the case of * * * * * (e) Autoquoting of highest bid/lowest offer and automated adjustment of size a buy order) or below (in the case of a Supplementary Material of liquidity bid and offer. The Exchange sell order) the LRP. Where the unfilled .10 Nothing in paragraph (d)(2)(B) will autoquote the NYSE’s highest bid balance of an auto ex order is able to above is intended to discourage a or lowest offer whenever a limit order trade at a price above (below) the LRP, locking member from electing to ship if is transmitted to the specialist’s book at but the price does not create a locked the complaint requests him to do so. a price higher (lower) than the or crossed market, autoquote will .20 The fact that a transaction may previously disseminated highest resume upon a manual transaction or be cancelled or the price thereof may be (lowest) bid (offer). When the NYSE’s the publication of a new quote by the adjusted pursuant to the provisions of highest bid or lowest offer has been specialist, but in any event in no more paragraph (b)(2) of this Rule 15A, shall traded with in its entirety, the Exchange than 10 seconds. Where the unfilled not have any effect, under the rules, on will autoquote a new bid or offer balance of an auto ex order is able to other transactions or the execution of reflecting the total size of orders on the trade at a price above (below) the LRP orders not involved in the original specialist’s book at the next highest (in and the price creates a locked or crossed transaction. the case of a bid) or lowest (in the case market, autoquote will resume upon a .30 The provisions of this Rule 15A of an offer) price. The size of any manual transaction or the publication of shall supersede the provisions of any liquidity bid or offer shall be a new quote by the specialist. Autoquote will resume as soon as other Exchange Rule which might be systemically increased to reflect any possible after a momentum liquidity construed as being inconsistent with additional limit orders transmitted to replenishment point, as defined in Rule 15A. the specialist’s book at prices ranging Exchange Rule 1000(a)(v)(B), is reached, .40 For the purposes of this Rule: from the liquidity bid or offer price to but in no more than ten seconds unless i. The terms ‘‘Exchange trade- the highest bid (lowest offer). The size a locked or crossed market exists. In through’’ and ‘‘Third participating of any liquidity bid or offer shall be such case, autoquote will resume upon market center trade-through’’ do not systematically decreased to reflect the a manual transaction. include the situation where a member execution of any limit orders on the Autoquote will resume immediately who initiates the purchase (sale) of an specialist’s book at prices ranging from after a manual report of a block size ITS security at a price which is higher the liquidity bid or offer price to the transaction is reported. (lower) than the price at which the highest bid (lowest offer). However, de security is being offered (bid) in another minimis increases or decreases in the * * * * * ITS participating market, sends size of limit orders on the book, as [Below Best] Bids [-] and [Above Best] contemporaneously through ITS to such determined by the specialist, will not Offers ITS participating market a commitment result in automated augmenting or to trade at such offer (bid) price or better decrementing of the size of the liquidity Rule 70 and for at least the number of shares bid or offer where such bid or offer When a bid is clearly established, no displayed with that market center’s continues to reflect the actual size of bid or offer at a lower price shall be better-priced offer (bid); and limit orders on the book. made. When an offer is clearly ii. A trade-through complaint sent in [In any instance where the specialist established, no offer or bid at a higher these circumstances is not valid, even if disseminates a proprietary bid (offer) of price shall be made. the commitment sent in satisfaction 100 shares on one side of the market, All bids made and accepted, and all cancels or expires, and even if there is the bid or offer on that side of the offers made and accepted, in accordance more stock behind the quote in the other market shall not be autoquoted. In such with Exchange Rules [45 to 86] shall be market. an instance, any better-priced limit binding. .50 Where a better bid or offer is orders received by the specialist shall be Supplementary Material published by another ITS participating manually displayed, unless they are market center or centers in which an executed at a better price in a .10 Except for bids and offers made automatic execution is immediately transaction being put together in the by a specialist pursuant to Rule 104 (b) available or such bid or offer is auction market at the time that the order and (c), [A]any bid (offer) systemically otherwise protected from a trade- is received.] delivered to the Display Book which is through by Securities and Exchange Autoquote will be suspended when made at the same or higher (lower) price Commission rule or ITS Plan, and the the specialist has gapped the quotation of the prevailing offer (bid) shall result price associated with such published in accordance with Exchange policies in an automatic execution [transaction better bid or offer has not been and procedures, a block size transaction at the offer price in an amount equal to systemically matched by the specialist, as defined in Rule 127 that involves the lesser of the bid or offer. The same the Exchange will automatically route to orders on the book is being reported principle shall apply when an offer is

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made at the same or lower price as the the extent provided by, Exchange Rules (i) The price and full size of each bid.] in accordance with, and to the 1000–1004. customer limit order that is at a price extent provided by, Exchange Rules (e) A Floor broker may have an that would improve the specialist’s bid 1000–1004. agency interest file in only one Crowd, or offer in such security; and .20 (a) A Floor broker may place as determined by the Exchange, at any (ii) The full size of each limit order within the Display Book system a broker given time. A Floor broker may trade on that agency interest file at varying prices at behalf of his or her orders as part of the (A) Is priced equal to the specialist’s or outside the Exchange best bid and Crowd at the same price and on the bid or offer for such security; offer with respect to orders he or she is same side of the market as his or her (B) Is priced equal to the national best representing on the Floor, except that agency interest file only to the extent bid or offer; and the agency interest file shall not include that the volume traded verbally in the (C) Represents more than a de any ‘‘G’’ order interest or customer Crowd is not included in the agency minimis change (i.e., more than 10 interest that restricts the specialist’s interest file. percent) in relation to the size ability to be on parity pursuant to (f) A Floor broker’s agency interest file associated with the Exchange’s bid or Exchange Rule 104.10(6)(i)(C). must be cancelled when he or she leaves offer. (b) All Floor broker agency interest at the Crowd. Failure to do so is a violation [Each specialist shall keep active at all the same price shall be on parity, except of Exchange rules. If the Floor broker times the quotation processing facilities agency interest that established the leaves the Crowd without canceling his (known as ‘‘Quote Assist’’) provided by Exchange best bid or offer shall be or her agency interest file and one or the Exchange. A specialist may entitled to priority for one trade in more executions occur with the agency deactivate the quotation processing accordance with Exchange Rule 72. No interest, the Floor broker shall be held facilities as to a stock or a group of Floor broker agency interest in the file to such executions. stocks provided that Floor Official shall be entitled to precedence based on (g) A Floor broker has discretion to approval is obtained. Such approval to size. exclude his or her agency interest from deactivate Quote Assist must be (c) The Floor broker agency interest the aggregated agency file interest file shall become part of the quotation obtained no later than three minutes when it is at or becomes the Exchange information available to the specialist. from the time of deactivation.] best bid or offer and shall be executed (h) Broker agency interest excluded Limit orders received by the specialist in accordance with Exchange Rule 72. from the aggregated interest information that improve the Exchange then-current Such interest will be displayed in its available to the specialist is able to bid or offer or change the size of the entirety if less than 1,000 shares, and if participate in automatic executions, but Exchange bid or offer, other than de greater than 1,000 shares, will be will not participate in a manual minimis increases or decreases, shall be displayed for 1,000 shares or a greater execution unless the broker representing autoquoted in accordance with amount chosen by the Floor broker. this interest verbally trades on its behalf Exchange Rule 60(e). The Exchange That portion of the interest displayed at as part of the Crowd and may trade at shall activate the autoquote facility in the best bid or offer shall be on parity a price that is inferior to the price of each specialty stock by initiating a with other displayed interest at such such transaction. liquidity quote. Each specialist shall best bid or offer. That portion not (i) Nothing in this rule shall be keep active at all times the autoquote displayed will yield to all other interest interpreted as modifying or relieving the facility provided by the Exchange, on the book, in the Crowd or of the Floor broker from his or her agency except that a specialist may cause the specialist eligible to trade at the obligations and required compliance deactivation of the autoquote facility by published bid or offer. with all Exchange rules, policies and gapping the quote in accordance with Once an execution has taken place procedures. the policies and procedures of the against the interest represented by a .30 Definition of Crowd A Floor Exchange. Autoquoting will also be Floor broker in the agency interest file, broker will be considered to be in a automatically suspended when a if the remaining displayed interest Crowd if he or she is present at any one liquidity replenishment point, as represented by that Floor broker is for of five contiguous panels at any one defined in Exchange Rule 1000(a)(v), is less than 1,000 shares and the Floor post where securities are traded. reached. broker represents additional interest in * * * * * The requirements with respect to the Floor broker’s agency interest file, specialists’ display of limit orders shall Miscellaneous Requirements on Stock such additional interest will be not apply to any customer limit order and Bond Market Procedures automatically displayed in its entirety if that is[;]: less than 1,000 shares or for 1,000 Rule 79A (1) Executed upon receipt of the order; shares or a greater amount chosen by Supplementary Material the Floor broker. (2) Placed by a customer who Any unfilled portion of an incoming .10 Request to make better bid or expressly requests, either at the time the order that was executed automatically offer.—When any Floor broker does not order is placed or prior thereto pursuant at the displayed bid or offer shall be bid or offer at the limit of an order to an individually negotiated agreement executed against any undisplayed which is better than the currently with respect to such customer’s orders, contra side interest residing in the quoted price in the security and is that the order not be displayed; broker agency interest file at the same requested by his principal to bid or offer (3) An odd-lot order; price in a transaction directly following at such limit, he shall do so. (4) Delivered immediately upon the automatic execution. .15 With respect to limit orders receipt to an exchange or association- (d) A Floor broker’s agency interest received by specialists, each specialist sponsored system or an electronic not at the Exchange best bid or offer shall publish immediately (i.e., as soon communications network that complies shall be on parity with orders on the as practicable, which under normal with the requirements of Securities and book, the Crowd and the specialist market conditions means no later than Exchange Commission Rule 11Ac1– layered interest file if executed as part 30 seconds from time of receipt) a bid 1(c)(5)(ii) under the Securities Exchange of a sweep in accordance with, and to or offer that reflects; Act with respect to that order;

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(5) Delivered immediately upon offer, provided the specialist purchases have priority in trading with that order. receipt to another exchange member or or sells all of the remaining volume on Specialist interest established by the over-the-counter market maker that the order being facilitated; or Quote API that does not trade with a complies with the requirements of (vii) Place within the Display Book particular order it identifies will be Securities and Exchange Commission system a specialist interest file at automatically cancelled by the Rule 11Ac1–4 under the Securities varying prices outside the published Exchange. Exchange Act with respect to that order; Exchange quotation. * * * * * (6) An ‘‘all or none’’ order; The specialist Quote API may permit (7) A limit order to buy at a price the specialist dealer account to (Remainder of rule unchanged) significantly above the current offer or systemically participate in a transaction Disclosure of Specialists’ Orders a limit order to sell at a price to provide price improvement as Rule 115 significantly below the current bid that provided in (iv) only when: is handled in compliance with (A) The quotation spread is .03 or A member acting as a specialist may Exchange procedures regarding such greater; disclose any information in regard to the orders, (‘‘too marketable limit orders’’); (B) The specialist’s interest at the order entrusted to the specialist: or Exchange published bid or offer in that (8) An order that is handled in security is the lesser of 10,000 shares or (i) For the purpose of demonstrating compliance with Exchange procedures twenty percent of the size of the market the methods of trading to visitors to the regarding gap quoting or block crosses on the side which the transaction will Floor; at significant premiums or discounts take place; (ii) To other market centers in order from the last sale. (C) The size of the order to be to facilitate the operation of ITS or any * * * * * executed is 2,000 shares or less; other Application of the System; and (Remainder of rule unchanged) (D) The specialist satisfies the entire (iii) While acting in a market making order; and capacity, to provide information about Dealings by Specialists (E) The price improvement to be buying or selling interest in the market, Rule 104 supplied by the specialist’s including aggregated buying or selling participation is at least .02 where the * * * * * interest contained in any broker agency quotation spread at the time of the (b) Specialists shall have the ability to interest file other than interest the transaction is .03 to .05, is at least .03 establish an external quote application broker has chosen to exclude from the where the quotation spread at the time interface (‘‘Quote API’’) which utilizes aggregate buying and selling interest in of the transaction is .06 to .10, is at least proprietary algorithms that allow the response to an inquiry from a member .04 where the quotation spread at the specialist, on behalf of the dealer conducting a market probe in the time of the transaction is .11 to .20, and account, to systematically update the normal course of business. Information is at least .05 where the quotation Exchange published bid or offer within regarding stop orders may be provided spread at the time of the transaction is the Display Book system in Investment if the specialist has a reasonable basis to greater than .20. Company Units (as defined in paragraph believe that the member intends to trade 703.16 of the Listed Company Manual), (d) Quote API pursuant to paragraphs (b) and (c) above: the security at a price at which stop or Trust Issued Receipts (as defined in orders would be relevant. A specialist Rule 1200). [Nothing in this rule shall (i) Must not enable the specialist to trade at the best bid or offer except as shall make information available in a be interpreted as modifying or relieving fair and impartial manner to any the specialist from his or her obligations permitted in (c)(vi) above; (ii) Must be designed and must member while on the Floor. A specialist and required compliance with all shall not disclose the identity of any Exchange rules, policies and operate in such a manner that its functionality is based on the buyer or seller represented on his book procedures.] if expressly requested not to do so by (c) Except as otherwise provided in consideration of only the order most recently accessed by or available to the the broker who entered the order with paragraph (b) above, specialists shall the specialist. have the ability to establish an external Quote API at the time the Quote API is quote application interface (‘‘Quote generating a message; * * * * * API’’) which utilizes proprietary (iii) Must identify the order it is (Remainder of rule unchanged) reacting to in a manner prescribed by algorithms that allow the specialist, on Orders of Members To Be in Writing behalf of the dealer account, to the Exchange; systemically: (iv) Must not be operative during the Rule 117 (i) When not reacting to an order time a block size trade as defined in entering the Display Book, establish Rule 127 involving orders on the book No member on the Floor shall make the best bid or offer on the Exchange; is being reported pursuant to manual any bid, offer or transaction for or on (ii) When not reacting to an order procedures or at any time that behalf of another member except entering the Display Book, withdraw autoquoting or automatic executions are pursuant to a written or electronically the specialist interest at the best bid or not available on the Exchange; and recorded order. If a member to whom an offer on the Exchange; (v) Must be able to participate in a order has been entrusted leaves the (iii) Supplement the size of the trade in a manner that complies with all Crowd without actually transferring the existing Exchange published best bid or Exchange rules, policies and procedures order to another member, the order shall offer; with respect to the specialist’s ability to not be represented in the market during (iv) Provide price improvement to establish, increase or liquidate a his or her absence, except with respect automatic executions subject to the position. to any portion of his or her agency conditions outlined below; The identification of a particular interest file that was not cancelled (v) Match bids and offers published by order that the Quote API is reacting to before the member left the Crowd, other market centers; when it sends a message will not notwithstanding that such failure to (vi) Facilitate a single-price execution guarantee that the specialist will trade cancel an agency interest file is a at the Exchange published best bid or with that order or that the specialist will violation of Exchange rules.

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Supplementary Material 9. Time in force; market compared with the Exchange .10 Absence from Crowd.—When a 10. Designation as held or not held; best offer (bid). member keeps an order in his or her 11. Any special conditions; (2) If not executed upon entry, an auction limit order to buy with a limit possession and leaves the Crowd in 12. System-generated time of price that is at or above the Exchange which dealings in the security are recording order details, modification of best offer when it reaches the book shall conducted, the member is not entitled terms of order or cancellation of order; be autoquoted the minimum variation during his or her absence to have any 13. Such other information as the better than the Exchange best bid at the bid, offer or transaction made in such Exchange may from time to time time and an auction limit order to sell security on his or her behalf or to have require. with a limit price that is at or below the dealings in the security held up until he The Floor member must identify Exchange best bid when it reaches the or she is summoned to the Crowd, which orders or portions thereof are book shall be autoquoted the minimum except that the member shall be held to being made part of the agency interest file pursuant to such procedures as variation better than the Exchange best any executions involving his or her offer at that time, thereby becoming the agency interest file. To insure required by the Exchange. * * * * * new Exchange best bid or offer. representation of an order in the market The size associated with a subsequent (Remainder of rule unchanged) during his or her absence, a member auction limit order to buy with a limit must therefore actually turn the order Miscellaneous Requirements price that is at or above the Exchange over to another member who will Rule 123A best offer when it reaches the book will undertake to remain in the Crowd. If a be added to the bid. The size associated member keeps the order in his or her * * * * * with a subsequent auction limit order to possession and during his or her .30 A specialist may accept one or sell with a limit price that is at or below absence from the Crowd the security more percentage orders.— the Exchange best bid when it reaches sells at or through the limit of his or her * * * * * the book will be added to the offer. order, the member will be deemed to (a) The elected or converted portion of (3) The arrival of a subsequent order have missed the market. a ‘‘percentage order that is convertible on the same side of the market capable * * * * * on a destabilizing tick and designated of trading at a price better than the (Remainder of rule unchanged) immediate execution or cancel election’’ auction limit order is bidding (offering), Record of Orders (‘‘CA–DI order’’) may be automatically the execution of an order on the same executed and may participate in a side, of the market as an auction limit Rule 123 sweep. order that exhausts some or all of the * * * * * (i) An elected or converted CAP–DI contra-side volume available in the order on the same side of the market as Exchange quotation, the cancellation of (e) System Entry Required an automatically executed electing some or all of the contra-side volume, or Except as provided in paragraph .21 order may participate in a transaction at a change in the price of the contra-side and .22 below, no Floor member may the bid (offer) price if there is volume of the quotation that would enable an represent or execute an order on the associated with the bid (offer) remaining execution of the auction limit order with Floor of the Exchange or place an after the electing order is filled in its price improvement shall cause the agency interest file within the Display entirety. An elected or converted CAP– auction limit order to be automatically Book system unless the details of the DI order on the same side of the market executed in accordance with, and to the order and the agency interest file have as an automatically executed electing extent provided by, Exchange Rules been first recorded in an electronic order that sweeps the book will 1000–1004. system on the Floor. Any member participate in a transaction at the sweep (4) An auction limit order that has not organization proprietary system used to clean up price if there is volume been executed within 15 seconds after it record the details of the order and remaining on the book or from contra- reaches the book shall be automatically agency interest file must be capable of side elected CAP–DI orders at that price. executed in accordance with, and to the transmitting these details to a (ii) An elected or converted CAP–DI extent provided by, Exchange Rules designated Exchange data base within order on the contra-side of the market 1000–1004. such time frame as the Exchange may as an automatically executed electing (5) An auction limit order may be prescribe. order may participate in a transaction at executed at a price inferior to the The details of each order required to the bid (offer) price and the sweep clean market price prevailing at the time it be recorded shall include the following up price, if any. was entered. (6) An auction buy limit order with a data elements, any changes in the terms * * * * * limit price that is not at or above the of the order and cancellations, in such (Remainder of rule unchanged) form as the Exchange may from time to Exchange best offer when it reaches the time prescribe: Order Handling—Auction Limit Orders book or an auction limit order to sell 1. Symbol; and Market Orders with a limit price that is not at or below 2. Clearing member organization; Rule 123F the Exchange best bid when it reaches 3. Order identifier that uniquely the book shall be displayed on the book identifies the order; (a) Auction Limit Orders at its limit price. An auction limit order 4. Identification of member or (1) An auction limit order will be that is unable to automatically execute member organization recording order automatically executed or routed because of its limit price shall be details; pursuant to Rule 15A.50 upon entry if handled as a regular limit order. 5. Number of shares or quantity of there is a minimum variation quotation (b) Market Orders security; on the Exchange at the time the order (1) A market order designated for 6. Side of market; reaches the book or the national best bid automatic execution will be 7. Designation as market, limit, stop, (offer) is displayed by another ITS automatically executed in accordance stop limit[;], auction limit; participating market center and such with and to the extent provided by 8. Any limit price and/or stop price; bid (offer) creates a minimum variation Exchange Rules 1000–1004.

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(2) A market order not designated for (Remainder of rule unchanged) minimum of five cents from the automatic execution but delivered Exchange bid (offer), rounded to the NYSE Direct+ Automatic Execution of systemically to the Display Book will nearest five-cent increment, or Limit Orders Against Orders Reflected be automatically executed or routed (B) An automatic execution reaches a in NYSE Published Quotation pursuant to Rule 15A.50 upon entry if momentum liquidity replenishment there is a minimum variation quotation Rule 1000 point (‘‘MLRP’’) or an automatic on the Exchange at the time the order (a) [Only straight limit orders without execution would result in a transaction  reaches the Display Book or the tick restrictions are eligible for entry as at a price on that side of the market national best bid (offer) is displayed by auto ex orders. Auto ex orders to buy outside a MLRP range. A MLRP range is calculated based on high and low another ITS participating market center shall be priced at or above the price of transaction prices on the Exchange in a and such bid (offer) creates a minimum the published NYSE offer. Auto ex security within the prior 30 seconds. A variation market compared with the orders to sell shall be priced at or below MLRP is reached when the execution Exchange best offer (bid). the price of the NYSE bid.] An auto ex price of a security has moved the greater (3) If not executed upon entry, such order shall receive an immediate, of twenty-five cents or 1% of its price market order to buy shall be autoquoted automatic execution against orders (rounded to the nearest cent) on the the minimum variation better than the reflected in the Exchange[’s] published Exchange best bid and such market Exchange within 30 seconds or less; quotation, orders on the book, Floor (vi) A block size transaction as order to sell shall be quoted the broker agency interest file and specialist minimum variation better than the defined in Rule 127 that involves orders interest file, in accordance with, and to on the book is being reported manually; Exchange best offer at that time, thereby the extent provided by, Exchange Rules becoming the new Exchange best bid or or 1000–1004 and shall be immediately (vii) The order is for a security whose offer. reported as [NYSE] Exchange (4) The arrival of a subsequent order price on the Exchange is more than transactions, unless: on the same side of the market capable $300.00. (i) The [NYSE’s] Exchange published (b)(i) Auto ex orders to buy shall trade of trading at a better price than such quotation is in the non-firm quote mode; market order is bidding (offering), the with the Exchange published best offer. [(ii) The execution price would be Auto ex orders to sell shall trade with execution of an order on the same side more than five cents away from the last of the market as such market order, that the Exchange published best bid. reported transaction price in the subject (ii) Where the volume associated with exhausts some or all of the contra-side security on the Exchange]; the Exchange published best bid (offer) volume available in the Exchange [(iii)] (ii) With respect to a single- is insufficient to fill an auto ex order in quotation, the cancellation of some or sided auto ex order, a better [price its entirety, other than an incoming all of the contra-side volume, or a exists] bid or offer is published in commitment to trade received through change in the price of the contra-side of another ITS participating market center ITS, the unfilled balance of such order the quotation that would enable an where an automatic execution is (the ‘‘residual’’) shall ‘‘sweep’’ the book execution of such market order with immediately available or where such i.e., trade with orders on the book and price improvement shall cause such better bid or offer is otherwise protected any broker agency interest file and/or market order to be automatically from a trade-through by Securities and specialist interest file capable of executed in accordance with, and to the Exchange Commission rule or ITS Plan execution in accordance with Exchange extent provided by, Exchange Rules and such better bid or offer has not been rules until it is executed in full, its limit 1000–1004. systemically matched on the Exchange, price if any is reached, or a liquidity (5) A market order that has not been unless the member entering the order replenishment point is reached, executed within 15 seconds shall be indicates in such manner as required by whichever occurs first. After trading automatically executed in accordance the Exchange that it is with the Exchange published best bid with, and to the extent provided by, contemporaneously satisfying such (offer), the unfilled balance of any Exchange Rules 1000–1004. (6) A market order may be executed better bid or offer; incoming commitment to trade received at a price inferior to the market price [(iv) With respect to a single-sided through ITS shall be automatically prevailing at the time it was entered. auto ex order, the NYSE’s published bid cancelled. or offer is 100 shares;] (iii) The residual shall trade with the * * * * * [(v) A transaction outside the NYSE’s orders on the book and any broker Odd-Lot Orders published bid or offer pursuant to Rule agency interest file and/or specialist 127 is in the process of being interest file capable of execution in Rule 124 completed, in which case the specialist accordance with Exchange rules at a * * * * * should publish a bid and/or offer that is single price, such price being the best price at which such orders and files can Supplementary Material more than five cents away from the last reported transaction price in the subject trade with the residual to the extent * * * * * security on the Exchange]; possible, or a liquidity replenishment .50 [The odd-lot portion of PRL (part [(vi)] (iii) Trading in the subject point, whichever comes first (‘‘clean up of round lot) orders will be executed at security has been halted; price’’). Orders on the book and Floor the same price as the round lot portion [(vi)] (iv) The specialist has gapped broker agency interest trading with the and will be processed through the round the quotation in accordance with the residual shall be on parity and receive lot system.] The round lot portion of a policies and procedures of the the clean up price. If no orders remain part of round lot (PRL) order will be Exchange; on the book capable of trading at the automatically executed in accordance (v) A liquidity replenishment point clean up price, specialist interest may with, and to the extent provided by, has been reached. A liquidity trade and will be on parity to the extent Exchange Rules 1000–1004. The odd lot replenishment point (‘‘LRP’’) is reached permitted by Exchange rules with broker portion will be executed with the when: agency interest at that price if any. Any specialist as contra party. (A) The price of an automatic specialist interest that remains after the * * * * * execution would be above (below) a residual has traded at the clean up price

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will be immediately cancelled with respect to each automatic any tick test applicable to such auction automatically by the Exchange. Where a execution of an auto ex order shall be market transaction shall be based on the bid or offer published by another ITS done systemically; last reported trade on the Exchange participating market center where an (iv) The specialist shall be the contra prior to such execution of auto ex automatic execution is immediately party to any automatic execution of an orders. available is better than the sweep clean auto ex order where interest reflected in * * * * * up price or where such better bid or the published quotation against which offer is otherwise protected from a the auto ex order was executed is no Election of Stop Orders and Percentage trade-through by Securities and longer available, except with respect to Orders Exchange Commission rule or ITS Plan, transactions occurring with the broker Rule 1004 the portion of the sweeping residual that agency interest file; [(v) A universal contra shall be Automatic executions of auto ex satisfies the size of such better priced orders shall elect stop orders, stop limit bid or offer will be automatically routed reported as the contra to each automatic execution of an auto ex order.] orders and percentage orders electable as a commitment to trade to the ITS at the price of such executions. Any participating market center publishing [(b) If the depth of the published bid or offer is not sufficient to fill an auto stop orders so elected shall be such better bid or offer. automatically executed pursuant to [the] (iv) Any auto ex order residual ex order in its entirety, the unfilled Exchange[’s auction market procedures] remaining after the sweep described in balance of the order shall be routed to rules, and shall not be guaranteed an (ii) above shall be bid (offered) at the the Floor and shall be displayed in the execution at the same price as order’s limit price, if any, or the LRP auction market.] subsequent automatic executions of auto whichever is lower (higher), unless the [(c)] (b) No published bid or offer ex orders. order is designated immediate or cancel, shall be entitled to claim precedence based on size with respect to executions in which case the residual shall be * * * * * against auto ex orders. automatically cancelled. [Orders May Not Be Broken Into [Auto ex orders that cannot be * * * * * Smaller Amounts] immediately executed shall be Availability of Automatic Execution [Rule 1005 displayed as limit orders in the auction Feature market. An auto ex order equal to or An auto ex order for any account in greater than the size of the NYSE’s Rule 1002 which the same person is directly or published bid or offer shall trade against [Orders designated as ‘‘a] Auto ex[’’] indirectly interested may only be the entire published bid or offer, and a orders in a particular stock, Investment entered at intervals of no less than 30 new bid or offer shall be published Company Unit (as defined in paragraph seconds between entry of each such pursuant to Rule 60(e). The unfilled 703.16 of the Listed Company Manual), order in a stock, Investment Company balance of the auto ex order shall be or Trust Issued Receipt (as defined in Unit (as defined in paragraph 703.16 of displayed as a limit order in the auction Rule 1200) shall be eligible to receive an the Listed Company Manual), or Trust market.] automatic execution if entered after the Issued Receipt (as defined in Rule [During a pilot program in 2003, Exchange has disseminated a published 1200), unless the orders are entered by NYSE Direct+ shall not be available in bid or offer, until 3:59 p.m. for stocks means of separate order entry terminals, the following five stocks: American and Trust Issued Receipts, or 4:14 p.m. and the member or member organization Express (AXP), Pfizer (PFE), for Investment Company Units, or responsible for entry of the orders to the International Business Machines (IBM), within one minute of any other closing Floor has procedures in place to Goldman Sachs (GS), and Citigroup (C). time of the Exchange’s floor market. monitor compliance with the separate The Exchange will announce in advance [Orders designated as ‘‘a] Auto ex[’’] terminal requirement.] to its membership the time the pilot will orders in a particular stock, Trust Issued * * * * * run.] Receipt, or Investment Company Unit II. Self-Regulatory Organization’s * * * * * that are entered prior to the dissemination of a bid or offer, or after Statement of the Purpose of, and Execution of Auto Ex Orders 3:59 p.m. for stocks and Trust Issued Statutory Basis for, the Proposed Rule Rule 1001 Receipts, after 4:14 p.m. for Investment Change Company Units, or within one minute of In its filing with the Commission, the (a) Subject to Rule 1000, auto ex any other closing time, shall be NYSE included statements concerning orders shall be executed automatically [displayed as limit orders] displayed as the purpose of and basis for the and immediately reported. The contra market or limit orders as applicable [in proposed rule change and discussed any side of the execution shall be [orders the auction market] unless it is an comments it received on the proposed reflected in the Exchange’s published incoming commitment to trade received rule change. The text of these statements quotation], as follows: (i) The first contra side bid or offer at through ITS or an auto ex order may be examined at the places specified a particular price shall be entitled to designated as immediate or cancel, in in Item IV below. The Exchange has time priority, but after a trade clears the which case such order would be prepared summaries, set forth in Floor, all bids and offers at such price cancelled . Sections A, B, and C below, of the most shall be on parity with each other; * * * * * significant aspects of such statements. (ii) All bids or offers on parity shall Application of Tick Tests A. Self-Regulatory Organization’s receive a split of executions in Statement of the Purpose of, and Rule 1003 accordance with Exchange Rule 72; Statutory Basis for, the Proposed Rule (iii) The [specialist shall be If a transaction has been agreed upon Change responsible for assigning] assignment of in the auction market, and an automatic the number of shares to each contra side execution involving auto ex orders is 1. Purpose bidder and offeror as appropriate, in reported at a different price before the In the Notice, the Exchange proposed accordance with Exchange Rule 72, auction market transaction is reported, enhancements to the operation of

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Direct+, the Exchange’s electronic continue to play a critical role in the Under the proposal, AL and market execution facility, and to other price discovery process. Competition orders would be electronically executed Exchange rules. The Exchange believes between orders represented by Floor when they arrive at the book if the that, taken together with Amendment brokers in the Crowd would help ensure Exchange quotation is the minimum Nos. 2 and 3, the proposal would create fair, orderly, and liquid markets. variation (e.g., 20.45 bid, offered at a unique, integrated market—a hybrid Interaction between Floor brokers and 20.46). Where the national best bid market—that would improve on the specialists would provide a flow of (offer) is published by another market speed and efficiency of technology by information regarding changing market center,10 and it causes a minimum preserving the advantages of human conditions and would serve as a catalyst variation market when compared with knowledge and expertise that are central to trading. the Exchange best offer (bid), an AL or to the agency-auction process. The In short, the Exchange believes that market order (or the requisite portion Exchange believes that by increasing the the hybrid market would combine the thereof) would be automatically routed array of available trading choices, the benefits of specialist and Floor broker to such other market center for hybrid market would benefit all expertise with the speed and certainty execution unless the specialist matches customers, from the smallest investors of electronic execution to create a the price of the better away offer (bid) to the largest institutions. system offering maximum choice to (e.g., Assume that an AL or market order The Exchange believes that the customers without eliminating time- to buy arrives, and the Exchange proposed enhancements to Direct+ tested trading procedures that have quotation is 20.45 bid, offered at 20.50, would offer immediate execution at the proven immensely successful in and a 20.46 offer is published by best bid and offer without restrictions providing stable, liquid, and less another market center. The AL or on order size or order frequency, as well volatile markets. market order would be electronically as anonymity and speed to the extent of The manner in which the Exchange’s routed to such other market center the displayed volume associated with hybrid market would operate has been unless the specialist matches the away the bid and offer. Under the proposal, described in the Notice. Amendment offer of 20.46). any residual would sweep existing Nos. 2 and 3 supplement the description Under the Exchange’s proposal, if not orders on the Display Book (‘‘book’’) of certain aspects of the hybrid market automatically executed or routed away until either the order is filled, its limit and makes further amendments to the upon entry, AL and market orders to price (if any) is reached, or a liquidity Exchange’s rules. buy would be autoquoted the minimum replenishment point (‘‘LRP’’) is reached. Specifically, the Exchange discusses variation above the Exchange best bid, The Exchange describes LRPs as pre- the following aspects of the hybrid determined price points at which and those to sell would be autoquoted market: the minimum variation below the electronic trading would briefly convert • Execution of auction limit orders to auction market trading. LRPs could Exchange best offer, thereby becoming and market orders; the Exchange best bid or offer (e.g., If be triggered by an electronic sweep or • Tick-restricted orders, stop orders, the quote is 20.45 bid, offered at 20.50, if electronic trading results in rapid and other orders eligible for automatic and a market order to buy or an AL buy price movement over a short period. execution; order with a limit of 20.51 arrives, then Because the LRP would convert the • The broker agency interest file; market solely to an auction market on a • Definition of the Crowd; the new quote would be 20.46 bid, temporary basis, it would moderate • The specialist interest file and offered at 20.50. Similarly, if the quote volatility by permitting new orders, as algorithm; is 20.45 bid, offered at 20.50 and a well as Crowd and specialist interest, to • Sweeps and LRP; market order to sell or an AL sell order add liquidity. The Exchange believes • Gap quoting; and with a limit of 20.45 arrives, the new that this would promote reasonable • Availability of automatic executions quote would be 20.45 bid, offered at continuity and foster the market quality and autoquote. 20.49). Under the proposal, the fact that the that is a hallmark of the Exchange. Auction Limit Orders and Market The Exchange believes that the hybrid bid (offer) is on behalf of an AL or Orders market proposal would preserve the best market order would not be shown on aspects of the agency-auction market. According to the Exchange, proposed NYSE OpenBook. An AL or market For example, customers who want the Auction Limit (‘‘AL’’) orders and market order would be shown in the quote at opportunity for price improvement orders not designated for automatic the price it is bidding (offering). An AL provided by the auction process would execution would provide an order’s limit price would be available to still be able to access the full extent of opportunity for price improvement, the specialist, who would require such the book and liquidity represented by thereby preserving a very important information in order to properly brokers on the Floor. The interaction of choice for customers. The objective represent the order. specialists and brokers in the Crowd would be for specialists to represent Furthermore, the size associated with would create a value proposition by these orders in the auction market, the bid or offer would be the size of the offering opportunities for price where the Crowd could offer an AL or market order. The size of improvement that are central to the opportunity for execution at a price subsequent AL and market orders on the auction market process. For instance, by better than the Exchange bid or offer, same side of the market would be committing capital and adding depth to while retaining as a backup the aggregated in the bid (offer) and the market in response to customer electronic functionality of automatic executed based on time priority, demands, specialists would continue to execution in case the specialist is stabilize prices and reduce volatility. unable to interact with the order 10 The other market center must be an Intermarket Their ability and commitment to inject immediately. Price improvement could Trading System (‘‘ITS’’) participant in which an liquidity into the market, in order to also result from the order’s participation automatic execution is immediately available or bridge temporary gaps in supply and in an automatic execution. AL and such bid (offer) is otherwise protected from a trade- through by a Commission rule or ITS Plan. For the demand, would keep the market fair and market orders could provide price purpose of Amendment Nos. 2 and 3, any orderly, which is in the interest of all improvement to the contra-side of an discussion of another market center or an away customers. Floor brokers would also execution. market refers only to those fitting this description.

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consistent with AL orders’ limit Tick-Restricted Orders, Stop Orders, market.17 These would include auto ex prices.11 and Other Orders Eligible for Automatic market orders, marketable limit orders, Although an AL or market order Execution incoming ITS commitments, ‘‘all or none’’ (AON) orders, CAP–DI orders, would risk missing the market in its As proposed, tick-restricted orders on attempt to obtain price improvement, stop orders, stop limit orders, tick- the book would be filed electronically sensitive orders and part of round lot the Exchange believes that electronic and participate in automatic executions orders.18 In addition, orders initially representation would limit that and sweeps as their ticks and limits, if eligible for automatic execution that possibility. Once on the book, an AL or any, allow. The direction of the sweep have been cancelled and replaced market order could participate in any relative to the automatic execution would remain eligible for automatic execution, including automatic would be in the correct direction: buy execution. executions and sweeps (e.g., Assume sweeps would cause short sales and sell Orders that would be ineligible for that the quote is 20.46 bid, offered at plus orders to be executed above the automatic execution at this time include 20.50, 2,500 × 2,000, and the bid is an offer, while sell sweeps would cause ‘‘opening only’’ (OPG), ‘‘fill or kill’’ AL order. If a market order designated buy minus orders to be executed below (FOK), ‘‘limit on close’’ (LOC), ‘‘market for automatic execution (an ‘‘NX’’ the bid. Sell short orders, other than on close’’ (MOC), ‘‘basis’’ (BAS), and market order) to sell 2,500 shares those involving Regulation SHO 13 pilot odd lot orders. In addition, orders in arrives, that order would automatically securities, would not sweep the book high-priced securities, currently defined execute against the AL order’s bid at after automatically executing against as securities priced above $300, would 20.46).12 bid, as the sweep transaction would be ineligible for automatic execution. 14 If an AL or market order has not been occur on a minus tick. These would include: Berkshire executed within 15 seconds of being Under the proposal, stop orders, Hathaway Inc. (BRK.A), Berkshire quoted, the order would automatically including stop limit orders (‘‘stop Hathaway Inc. (BRK.B), Wyeth $2 execute like any other auto ex order orders’’) on the book would be Convertible Preferred Stock (WYEPR), (e.g., Buy orders would execute against electronically elected and participate in Markel Corporation (MKL), Pitney the displayed offer, and sell orders automatic executions and sweeps by Bowes Inc. (PBIPR), The Washington would execute against the displayed appropriately-priced electing manual or Post Company (WPO), and White 15 Mountains Insurance Group, Ltd. bid), provided autoquote and automatic automatic execution transactions. (WTM). executions are available. In addition, Stop orders would be elected by an three events would cause automatic automatic execution at the bid or offer Broker Agency Interest File price and would trade after the sweep, execution of an AL or market order The proposed rules provide Floor if any. The sweep price could also elect before 15 seconds has elapsed. The brokers on the Exchange with the ability stop orders. The Exchange proposes three events are: (i) the arrival of a to express electronically that which they amendments to NYSE Rules 13 and subsequent order at a better price on the are currently able to do in the Crowd— 1004 to reflect this. Stop orders elected same side of the market as an AL or represent customer interest at varying on the contra-side of the market would market order; (ii) the execution of an prices at or outside the quote with trade as part of the sweep because they order on the same side of the market as respect to the orders they are handling. an AL or market order that exhausts would add liquidity. According to the Exchange, the broker some or all of the displayed contra-side Furthermore, stop orders and CAP–DI agency interest file would serve the volume or the cancellation of some or orders (convert and parity percentage public interest by giving customers the all of the displayed contra-side volume; orders) could be elected at the same benefit of Floor broker knowledge and and (iii) the displayed contra-side price time by automatic executions and trading expertise in ‘‘working’’ their improves, creating a minimum variation sweeps. If there is insufficient volume to orders, while not precluding them from market or allowing execution of the AL fill the elected orders, stop orders could participating in electronic executions or market order with price be executed first as they become market and sweeps. It would give customers improvement. In these situations, the or marketable limit orders upon their choice and Floor brokers flexibility in order causing the AL or market order to election, whereas the elected portion of representing orders over time at the automatically execute would trade first. CAP–DI orders would revert to CAP–DI point of sale, thereby maximizing their Where the limit of an AL order would status if it is unable to trade. In ability to obtain the best execution prevent it from automatically executing, addition, CAP–DI orders would trade on possible. In this way, the hybrid market 16 it would be placed on the book at its parity with each other, which could would meld the value of the agency- limit price and handled as a regular also affect the sequence in which auction with the benefits of automatic limit order. elected stop and CAP–DI orders would execution. trade. Under the proposal, the broker agency The Exchange proposes to renumber The Exchange proposes to amend interest would not be displayed publicly proposed NYSE Rules 60(h) and 60(i), unless it is at or becomes the Exchange describing AL and market orders, as NYSE Rule 13 to clarify the types of orders that would be eligible for best bid or offer. This is consistent with proposed NYSE Rules 123F(a) and automatic execution in the hybrid 123F(b). The application of (ii) above to 17 This revises the descriptions of orders market orders would amend proposed ineligible for automatic execution as stated in 13 NYSE Rule 123F(b). Furthermore, the See Securities Exchange Act Release No. 50103 footnotes 22 and 45 of the Notice and the (July 28, 2004), 69 FR 48008 (August 6, 2004). accompanying text. See note 6, supra. NYSE proposes additional amendments 14 See Exhibit A. 18 A part of round lot (‘‘PRL’’) order is an order to proposed NYSE Rules 13 and 123F to 15 Investment Company Units, as defined in for one or more units of trading plus an amount less clarify the operation of AL and market paragraph 703.16 of the Exchange Listed Company than a unit of trading. NYSE Rule 55 defines a unit orders. Manual, and Trust Issued Receipts (together, of trading as 100 shares unless otherwise Exchange-Traded Funds) are elected based on bids designated. Accordingly, an example of a PRL or offers, rather than transactions. See NYSE Rule would be an order to buy (sell) 517 shares. The 11 See Exhibit A. 13.30. specialist is the contra-side of the odd-lot portion 12 Id. 16 See NYSE Rule 123A.30. of a PRL.

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the Commission’s Quote Rule.19 When a In addition, where there is reserve designed as an incentive for Crowd broker’s agency interest is at or becomes interest at the best bid (offer) and an participation in the price discovery the Exchange best bid or offer, a incoming contra-side auto ex order process, to deepen liquidity particularly minimum of 1,000 shares per broker arrives to trade, there would be two as it relates to the working of orders would be displayed for agency interest separate Tape prints at the bid (offer) with potential market impact. It has the greater than or equal to 1,000 shares and price, if the amount of the incoming very positive effect of lowering would be included in the quote. A order exceeds the displayed interest at execution costs for customers by broker would have the discretion to the best bid (offer). In such case, the first providing the opportunity to leverage display more than 1,000 shares of his or print would be at the best bid (offer) human judgment for price her agency interest at the best bid or price for the amount of the displayed improvement, potentially on both sides offer. The actual amount of a broker’s interest. The second print, also at the of a trade, lowering market volatility. agency interest, if less than 1,000 shares, best bid (offer) price, would include any would be displayed and included in the contra-side CAP-DI orders 20 elected by The broker agency interest file would quote. The displayed agency interest at the first print and reserve interest. Any not be publicly disseminated except for the best bid or offer would be entitled residual remaining on the incoming the amount of agency interest displayed to parity with displayed orders at the order would then sweep the book until at the best bid or offer. The only bid or offer price, other than an order or executed, its limit price, if any, is information concerning the broker broker interest entitled to priority in reached, or an LRP is reached. For agency interest file available to the accordance with NYSE Rule 72. Broker example, there are 5,000 shares of specialist would be the aggregate agency interest at the best bid or offer broker agency interest at the best bid amount of agency interest at each price. that is not displayed (‘‘reserve interest’’) (offer) consisting of 1,000 shares of This aggregate information, which would yield to displayed interest in the displayed interest, which is the best bid, would include any reserve interest at best bid or offer, but would participate and 4,000 shares of reserve interest. The the Exchange best bid or offer unless in automatic executions provided there specialist has a CAP-DI order for 10,000 excluded from the aggregate as is sufficient contra-side liquidity. An shares to buy with a limit price, which described below, could be included in auto ex order would trade against the allows it to trade at the best bid (offer). a specialist’s response to a member’s displayed interest in the quote and any If an auto-ex order to sell 5,000 shares market probe in accordance with NYSE reserve at the bid or offer price before arrives, it would be automatically Rule 115, as amended. executed as follows: 1,000 shares at the it would sweep the book. This would Proposed NYSE Rule 70.20 is best bid prints first. This automatically amend proposed NYSE rules. amended to provide a Floor broker with After an execution, if there is less elects 1,000 shares of the CAP-DI order and then 4,000 shares print at the best the discretion to remove his or her than 1,000 shares of broker agency agency interest, including any reserve interest displayed at the best bid/offer, bid price. The 4,000 shares consist of 1,000 shares elected from the buy CAP- interest at the best bid (offer), from the but additional amount in the reserve, aggregate information available to the the displayed amount would replenish DI order and 3,000 shares of the reserve interest. The incoming order would specialist. Broker agency interest so that at least 1,000 shares of agency removed from the aggregate would be interest at the best bid/offer would be have traded a total of 5,000 shares at the bid price. 1,000 shares would remain in displayed as described above when it displayed. For example, if there are becomes, or is at, the Exchange best bid 1,000 shares of broker agency interest the reserve interest. Furthermore, displayed agency or offer. If a better bid or offer is made displayed at the best bid/offer, and 500 interest in the broker file that on the Exchange, such interest would no shares of reserve (undisplayed at that establishes the Exchange best bid or longer be displayed and would not be price), and a 500 share order executes offer would be entitled to priority at that included in the aggregate information against the 1,000 share of displayed price for one trade, as is the case with unless the Floor broker chooses interest, the remaining 500 shares of any other bid or offer. Broker agency otherwise. Broker agency interest reserve interest would be added to the interest that is outside the quote would removed from the aggregate information 500 shares of remaining broker agency participate on parity during sweeps, would participate in automatic interest at the best bid/offer to total providing liquidity to the market. executions and sweeps. It would be the 1,000 shares displayed interest at the Floor broker agency interest at the responsibility of the broker representing best bid/offer. same price would be on parity with interest not included in the aggregate If what is remaining in the displayed each other unless the interest was information to ensure that such interest broker agency interest and the reserve at entitled to priority under NYSE Rule 72, is properly represented with respect to the best bid/offer do not equal 1,000 and no interest would be able to invoke shares, all of the reserve and remaining any manual trade that may occur precedence based on size. because the specialist would not have displayed broker agency interest at that In addition, Floor brokers with an any knowledge of such interest. price would be displayed. For example, agency interest file would be required to if there are 1,600 shares of broker be in the Crowd, representing those Furthermore, the broker agency file agency interest displayed at the best orders. The agency interest file would could not include G order 21 interest or bid/offer, and 300 shares of reserve allow Floor brokers to represent their customer interest that prevents the interest (undisplayed at that price), and customers as they do in the auction specialist from trading on parity with a 1,500 share order executes against the market, negotiating execution prices the Crowd pursuant to NYSE Rule 1,600 shares of displayed broker agency without being required to disclose their 104.10(6)(i)(C). interest, then the remaining 100 shares intentions. The Exchange believes that Proposed NYSE Rule 70.20 has been of broker agency interest plus the full parity is the agency-auction principle amended to reflect the matters noted amount of the reserve interest (300 above. shares), totaling 400 shares, would be 20 CAP-DI orders on the same side of the market displayed at the best bid/offer. as the incoming order could also be elected by this print, but would not trade unless additional interest 21 ‘‘G’’ orders refer to proprietary orders remains after the incoming order is executed at the represented pursuant to Section 11(a)(1)(G) of the 19 Rule 11Ac1–1, 17 CFR 240.11Ac1–1. bid (offer) price. Act, 15 U.S.C. 78k(a)(1)(G).

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Definition of the Crowd improvement to automatic executions, to interact with that order, nor would it Floor brokers would be permitted to provided the following conditions are give the specialist interest priority in have agency interest files in only one met: (i) The quotation spread is at least trading with that order. Specialist Crowd at a time. The Exchange proposes three cents; (ii) the specialist is interest that does not trade with the an amendment to proposed NYSE Rule represented in the published bid or offer order identified by the algorithms, for 70.30 to add that a Crowd would consist in a meaningful amount: the lesser of example, because the specialist order of five contiguous panels at a single post 10,000 shares or 20% of the respective did not arrive at the book in time, or the bid (offer) size; (iii) the order receiving specialist has to yield to the book, where securities are traded. price improvement is of ‘‘retail’’ order would be automatically cancelled. Specialist Interest File and Algorithms size, i.e., 2,000 shares or less and the The Exchange believes that the The Exchange believes that specialists specialist fills the order; and (iv) the algorithms and specialist interest file provide value to the market, committing price improvement provided by the would enhance market quality by enabling the specialist to interact with capital to add liquidity and stabilize specialist is (a) at least .02 where the orders electronically, providing capital prices. Specialists’ ability and quote spread is .03–.05, (b) at least .03 and liquidity to the market as they do commitment to absorb short-term where the quote spread is .06–.10, (c) at today. Proposed NYSE Rule 104 has fluctuations by bridging temporary gaps least .04 where the quote spread is .11– been amended to clarify these rules. in supply and demand keeps the .20, and (d) at least .05 where the quote Exchange market fair and orderly and spread is more than .20. Sweeps and Liquidity Replenishment After a sweep, existing specialist lowers volatility. Points interest below the sweep price, in the To assist specialists in this effort and case of a buy sweep, or above the sweep The Exchange believes that LRPs to enable them to more readily comply price, in the case of a sell sweep, that would protect customers by moderating with their market-making was not included in the sweep due to volatility resulting from electronic responsibilities, the Exchange proposes yielding requirements, would be executions. Where specialists and Floor to provide specialists with the ability to immediately cancelled so that this brokers participate in the price implement an external quote interest would not be autoquoted as the discovery process, volatility moderators application interface (Quote API) which Exchange best bid or offer. The would not be necessary, and auction would utilize proprietary algorithms algorithms could send a separate market transactions would not be based on predetermined parameters that message in order to bid or offer at a subject to them. The Exchange would enable them to electronically price inferior to the sweep price, represents that the LRP parameters have represent their dealer account, provided Exchange rules governing been selected by the Exchange after replicating electronically some of the specialist trading permit bidding or careful evaluation and discussions with things specialists are permitted to do offering at that price. market participants. They would be manually. This would allow specialists Furthermore, the algorithms could be designed to impact automatic to provide value and liquidity within designed to have access to public executions infrequently. When reached, the context of an electronic market. information as well as orders entering LRPs would allow buyers and sellers to Based on predetermined parameters, the system. As noted above, an react to fast changing market conditions the algorithms could only: (i) Generate algorithmic message improving the and provide an opportunity for orders to a bid (offer) that would improve the Exchange best bid (offer) or interact with Crowd interest not Exchange best bid (offer) price; (ii) withdrawing a previously established encompassed in the broker agency withdraw a previously made best bid best bid (offer) could not be based on an interest file and with specialist interest, (offer), provided the algorithmic incoming order. Such new bid (offer) enabling the auction market to decision to improve or withdraw a bid could be the minimum variation or supplement liquidity and lower or offer is not based on a particular more than the previous best bid (offer). volatility. Consistent with the order entering the book; (iii) supplement An algorithmic message to provide price Exchange’s goal of expanding customer the size of an existing best bid (offer); improvement to an automatic execution choice, IOC orders would be cancelled (iv) match better bids (offers) published generated in reaction to an incoming automatically when automatic by other market centers; (v) facilitate a order would have to comply with the execution is suspended as a result of a single-priced execution at the Exchange conditions noted above, including price LRP.22 This would provide customers best bid or offer, provided the entire improvement of more than the with the opportunity to obtain an order is filled; (vi) layer specialist minimum variation. Electronic messages automatic execution in another market, interest at prices outside the quote, could not be generated by algorithms even if that price is inferior to the enabling the specialist, to the extent while a manual block-size trade is being Exchange best bid or offer consistent permitted by Exchange rules, to reported or when autoquote and with Regulation NMS proposals.23 participate in or price improve a sweep; automatic executions are unavailable. The Exchange proposes two LRPs: a and (vii) provide meaningful price Specialists’ use of algorithms would be price-based or sweep LRP and a improvement to orders, as described subject to review by the Exchange’s momentum-based LRP.24 The Exchange below. regulatory division. represents that the most restrictive LRP The algorithms would not be able to The algorithms could also generate would be disseminated via NYSE hit bids or take offers. All specialist messages only in reaction to one order trading whether manual or at a time and only as that order is 22 IOC orders would be cancelled in all instances electronically generated by algorithms entering the system. Algorithms would when automatic executions are unavailable. 23 See Securities Exchange Act Release No. 49325 would have to be in accordance with be required to identify, in the manner (February 26, 2004), 69 FR 11126 (March 9, 2004). Exchange Rules. Items (i)–(vii) above required by the Exchange, the specific See also Securities Exchange Act Release No. 49749 reflect proposed amendments to NYSE order to which they are reacting. The (May 20, 2004), 69 FR 30142 (May 26, 2004). Rule 104. fact that algorithms would have 24 In this amendment, the NYSE proposes to eliminate NYSE Rule 1000(a)(ii), which prohibits The algorithms would enable the generated a message in response to a automatic executions at a price more than five cents specialists on behalf of the dealer particular order would not guarantee away from the last reported transaction price on the account to electronically provide price that the specialist interest would be able Exchange in the relevant security.

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OpenBook or another data distribution described above, unless a manual trade shares at 20.05, 300 shares at 20.07, 100 channel. or quote occurs before then. shares at 20.08, and 1,000 shares at 20.09. If another market center also has Priced-Based or Sweep LRP Sweeps and Price Protection published an offer to sell for 500 shares The sweep LRP would be set at the The Exchange believes that nothing in at 20.01, and an NX order to buy 2,000 nearest five-cent increment outside the this filing or in the operation of sweeps shares arrives at the Exchange, then 500 Exchange best bid and offer, that is at would be inconsistent with or shares would automatically execute at least five cents away from the Exchange undermine the fundamental tenet of the 20.01 on the Exchange, and 500 shares best bid and offer (e.g., If the Exchange trade-through rules (‘‘TTR’’)—that would be automatically routed to the quote is 20.05 bid, offered at 20.10, then betters bids and offers published by other market center as a commitment to the sweep LRP would be 20.00 and other market centers are entitled to trade at 20.01. The remaining 1,000 20.15. If the Exchange quote is 20.04 protection. The proposals, including shares would sweep the Exchange book, bid, offered at 20.11, then the sweep automatic electronic routing of orders to trading at 20.08, providing price LRP would be 19.95 and 20.20). When the market centers displaying better improvement to the orders on the a LRP is reached, the sweeping order priced bids and offers, would be book.28 Alternatively, the specialist would trade at that price to the extent consistent with the TTR. Best bids algorithms could determine to execute of the volume available and then the (offers) published by away markets that the entire order on the Exchange at market would be autoquoted at the LRP are better than a sweep price would be 20.00. This example presumes that only if there is stock remaining on the order. satisfied in their entirety.25 As is today, one market center has a better published If not, the next best bid (offer) would be best bids and offers in these markets bid (offer) than the Exchange best bid autoquoted. Automatic executions and (i.e., ‘‘top of the book’’) would be (offer) or sweep price. All market autoquote would be suspended, but entitled to price protection. The centers that have a better published bid incoming orders and cancellations Exchange believes that intermarket (offer) than the price the Exchange would continue to be reflected price-time priority has been extensively would trade at would be satisfied. automatically on the book. If the debated,26 but has not been viewed to be displayed bid (offer) on the contra-side in the best interest of the national Momentum LRP (‘‘MLRP’’) cancels, a new bid (offer) would be market system. In any event, Regulation The Exchange believes that excessive autoquoted, in effect overriding the NMS proposes to permit customers to volatility could occur in situations other suspension (partial autoquote). sweep multiple markets than electronic sweeps. For this reason, Under the proposal, automatic contemporaneously to access better the Exchange proposes a LRP based on executions and autoquote would resume priced liquidity that may be available.27 price movement over a period of time. in no more than five seconds where the The ability of the specialist to match A MLRP would be reached when the sweeping order is filled in its entirety a better published bid or offer rather price of a security has moved the greater (e.g., no residual exists), where the than shipping an order to that bid or of twenty-five cents or 1% of its price,29 residual is cancelled (e.g., the sweeping offer is permitted today. According to within 30 seconds or less. For example, order is IOC), or where the residual’s the Exchange, the proposed rules would a MLRP would be reached in a security limit price is the LRP price, unless the simply speed the process by permitting that is trading at 18.00 when the price specialist manually trades or quotes the the specialist to electronically match or moves 0.25 in 30 seconds or less. Also, market before five seconds have ship. During the sweep, a commitment a MLRP would be reached in a security elapsed. to trade that would satisfy the full that is trading at 81.00 when the price Similarly, automatic executions and amount of any better bid or offer that is moves 0.81 in 30 seconds or less. autoquote would resume in no more published as the best bid or offer by Intraday price changes would be taken than 10 seconds where a residual exists another market center would be auto- into account and could widen or narrow and its limit price is above the LRP routed to such market (if a trade-through the MLRP range. (e.g., a security could price, but it does not create a locked or would otherwise occur). According to start the day with an MLRP range of crossed market, unless the specialist has the Exchange, this would be similarly twenty-five cents, with intraday price manually traded or quoted the market consistent with the TTR. changes expanding the MLRP range to before 10 seconds have elapsed. It is According to the Exchange, it has 1% of its price). expected that the specialist would quote been suggested that the proposed rules MLRP ranges would be calculated or trade before 10 seconds have elapsed, would enable the specialist to avoid using the high and low trades on the unless an imbalance exists, a trade is complying with the TTR by publishing Exchange within the prior 30 seconds. being put together in the Crowd, or what has been termed a ‘‘preemptive’’ The MLRP range could change based on market conditions otherwise prevent. In 100-share bid or offer. The Exchange an event (e.g., a new trade) or the any event, automatic executions and believes that this is erroneous. For passage of time.30 autoquote would resume after 10 example, assume that the Exchange After the auto ex order reaching a seconds. quotation is 19.91 bid, offered at 20.01, MLRP price trades at that price to the Finally, where a residual exists 100 × 500, and that there are offers on extent possible, automatic executions limited to a price above the LRP, and the book to sell 100 shares at 20.04, 500 and autoquote would be suspended. The the limit price creates a locked or crossed market, or when a locked or 25 This presumes that the order is not labeled as 28 Telephone conversation between Cyndi crossed market results from the entry of an intermarket sweep consistent with the proposed Rodriguez, Special Counsel, Division, Commission, Regulation NMS concept of an intermarket sweep and Don Siemer, Director, Market Surveillance, orders and cancellations during the 5 order. Telephone conversation between Kelly Riley, NYSE, on November 10, 2004. and 10-second periods described above, Assistant Director, Division, Commission, and Jeff 29 When calculating 1% of a security’s price, the automatic executions and autoquote Rosenstrock, Senior Special Counsel, Market result will be rounded to the nearest cent using would resume with a manual trade. If Surveillance, NYSE, on November 15, 2004. usual rounding conventions. For example, if a the locking or crossing residual order 26 See, e.g., Securities Exchange Act Release No. security is trading at $26.49, and 1% of its price is 42450 (February 23, 2000), 65 FR 10577 (February calculated, this would be rounded down to 0.26. If cancels, automatic executions and 28, 2000) (Commission request for comment on a security is trading at $26.53 and 1% of its price autoquote would resume within the issues relating to market fragmentation). is calculated, this would be rounded up to 0.27. relevant 5 or 10-second timeframe 27 See note 23, supra. 30 See Exhibit A.

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book would be automatically updated more large-size orders with no off- (offer) decrements to 100 shares. by incoming orders and cancellations. setting interest, or when a member Autoquote (and automatic executions, Automatic executions and autoquote proposes to effect a one-sided block where the quote has decremented to 100 would resume in no more than 10 transaction or a cross at a significant shares) would resume when the manual seconds unless the specialist has quoted premium or discount to the prevailing reporting is concluded. This would be or traded before then. As noted above, market. Specialists could only gap the the only instance in which manual the specialist would be expected to quotation in accordance with Exchange reporting would cause the suspension of trade or requote the stock in less than procedures. When the quotation is autoquote and could cause the 10 seconds unless conditions in the gapped, automatic executions and suspension of automatic executions. stock prevent this. Where incoming autoquote would be suspended, This would protect customer orders on orders and cancellations cause a locked although incoming orders and the specialist’s book during the or crossed market, autoquote and cancellations would update the book execution of block transactions pursuant automatic executions would resume electronically. Better priced orders to NYSE Rules 72(b) and 127 and would with a trade.31 would be taken into account in the facilitate orderly executions in limited In addition, a MLRP could cause the transaction resulting from the gapped ‘‘breakout’’ situations when liquidity is suspension of automatic executions on quotation. Floor Officials would oversee present but conditions are such that the the side of the market where the bid or the gap quote process, including its existence of a fair and orderly market offer is at a price beyond the MLRP duration. would depend on the ability of the range, as an automatic execution could specialist to quickly and efficiently not occur at that price. For example, if Availability of Automatic Executions effect block-size trades that could 33 the market is 20.05 bid, offered at 20.10, and Autoquote involve multiple parties. and the last sale is 20.08, and the MLRP The Exchange believes that autoquote The Exchange represents that once the range is 19.80–20.09 based on high and and automatic executions would be hybrid market is implemented, all other low trades within the operative 30- suspended infrequently and only in instances of manual reporting,36 second period, a trade could take place certain, limited circumstances: when autoquote, and automatic executions at the bid price because it would fall trading on the Exchange reaches a LRP; would continue to operate without within the MLRP range, but a trade when the quote is gapped in accordance suspension. The quote would could not take place at the offer price with Exchange procedures; when automatically update to reflect the entry (20.10) because it would fall outside the trading in a security has been halted; or of better bids and offers and MLRP range. As a result, automatic when the quote is not firm. A systemic cancellations. Automatic executions executions would be suspended on the indication would be disseminated when would continue to take place in the offer side, but continue on the bid side. automatic executions are unavailable. manner described in this proposal. This This would be indicated systemically in Each of these circumstances would represents a change to the operation of the same way as any other time an serve the public interest; the rationale autoquote and automatic executions as automatic execution is unavailable. for and benefit of LRPs and gap quotes described in Amendment No. 1 of this 37 Autoquoting would continue and orders are discussed above. No executions, filing. Although the Exchange expects and cancellations would update the automatic or manual, would be possible autoquote and automatic executions to book. Automatic executions would when trading has been halted, and it be available at least 99.7% of the time resume when a bid or offer within the would not be in the customer’s best as originally proposed, the Exchange MLRP range is autoquoted or the MLRP interest to automatically execute against believes that maximizing their range changes as a result of the moving a bid or offer that is not firm. 34 availability even more would benefit the 30-second timeframe. Autoquote, but not automatic Exchange’s customers. Furthermore, when autoquote and executions, would be suspended during Gap Quoting automatic executions are suspended, the extremely brief moment it would 32 incoming orders and cancellations Gap quotes would be used by take to manually report a block-sized would continue to arrive at the book, specialists in response to trading transaction.35 Automatic executions which would be electronically updated scenarios in which price dislocation is would continue until the size of the bid expected. Gap quotes would be used to to reflect these changes. When the Exchange best bid or offer cancels signal the potential price movement so 33 This discussion presumes the Direct+ facility is as to attract contra-side liquidity in an available. NYSE Rule 1002 provides that automatic during a time when autoquote is attempt to mitigate volatility. Gap quote executions are available if entered after the suspended, the next best bid (offer) on situations would involve clearly large Exchange has disseminated a published bid or offer the book would be autoquoted. Auto ex in that stock and until one minute before the orders, other than IOC orders, would be imbalances compared with the typical closing time of the Exchange’s Floor market. In the trading volume in a security. The size of unlikely event of an equipment failure preventing placed on the book. IOC orders would an imbalance suitable for gapped automatic executions during a time they would be cancelled automatically, as are 38 quoting would be at least 10,000 shares otherwise be available, a systemic indication of auto incoming ITS commitments to trade. ex unavailability would be made. The continuation of automatic or a quantity of stock having a value of 34 The Exchange believes that trading halts and executions while a manual trade is $200,000 or more, although depending non-firm quotations occur extremely infrequently. on the trading characteristics of the For example, during the first nine months of 2004, being reported could result in the security, the appropriate conditions for there have been only four non-firm quote situations. manual trade being reported to the Tape One or more Floor Governors or senior Floor gapped quoting could be higher. out of its proper sequence. Out of Officials must oversee trading halts and non-firm sequence trades would be identified as The specialist determines when to gap quotes. See NYSE Rule 60. Exchange rules the quotation based on certain market regarding trading halts and non-firm quotes have conditions such as a sudden influx of been approved by the Commission and are in 36 Trades occurring within the Crowd or between accordance with Rule 11Ac1–1 of the Act, 17 CFR the Crowd and the specialist, as either agent or orders on one side of the market, one or 240.11Ac1–1. dealer, are reported manually. 35 NYSE Rule 127 defines a ‘‘block’’ size as at 37 See Amendment No. 1, supra note 5. 31 Id. least 10,000 shares or a quantity of stock having a 38 The Exchange believes that this would be 32 For a complete description of Gap quotes, see market value of $200,000 or more, whichever is consistent with concepts discussed in proposed footnote 18 of the Notice, supra note 6. less. Regulation NMS. See note 23, supra.

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such. If a bid or offer at a better price (ii) as to which the Exchange consents, 2004–05 and should be submitted on or arrives at the book before a manual the Commission will: before December 13, 2004. report is concluded, the system would (A) By order approve the proposed For the Commission, by the Division of automatically report the trade at such rule change, or Market Regulation, pursuant to delegated better price (e.g., Assume that the quote (B) Institute proceedings to determine authority.42 is 20.05 bid, offered at 20.10, and a whether the proposed rule change Margaret H. McFarland, broker in the Crowd takes the offer, but should be disapproved. Deputy Secretary. before the report of the trade is completed, an offer to sell 1,000 shares IV. Solicitation of Comments Exhibit A—Trading Examples at 20.09 arrives at the book. The system Interested persons are invited to AL Orders and Market Orders would automatically report the trade at submit written data, views, and 1. AL and market orders on the same side 20.09, with the seller being the newly- arguments concerning the foregoing, of the market are aggregated in the quote and arriving better offer.) including whether the proposed rule executed based on time priority: change as amended by Amendment Nos. The quotation is 20.45 bid, offered at 20.50, 2. Statutory Basis × 2 and 3 is consistent with the Act. 500 2,000. An AL order to buy 1,000 shares The Exchange believes that the Comments may be submitted by any of with a limit of 20.55 arrives. The market is autoquoted the minimum variation (one cent) proposed rule change, as amended, is the following methods: 39 better than the existing bid, 20.46 bid, offered consistent with Section 6(b) of the Act × Electronic Comments at 20.50, 1,000 2,000. An AL order to buy in general, and furthers the objectives of 500 shares at a limit of 20.57 and a market 40 Section 6(b)(5) of the Act in • Use the Commission’s Internet order to buy 1,000 shares arrive. The market particular, because it is designed to comment form (http://www.sec.gov/ is autoquoted 20.46 bid, offered at 20.50, promote just and equitable principles of rules/sro.shtml!); or 2,500 × 2,000, aggregating the volume of the 43 trade, to remove impediments to and • Send an e-mail to rule- AL and market buy orders. An NX market perfect the mechanism of a free and order to sell 1,500 shares arrives and [email protected]. Please include File automatically executes against the bid, filled open market and a national market Number SR–NYSE–2004–05 on the system, and, in general, to protect by the first two AL orders. The market is subject line. autoquoted 20.46 bid, offered at 20.50, 1000 investors and the public interest. The × 44 Paper Comments 2000. Exchange also believes that the 2. The execution of an order on the same proposed rule change is designed to • Send paper comments in triplicate side of the market that exhausts some or all support the principles of Section to Jonathan G. Katz, Secretary, of the displayed contra-side volume will 11A(a)(1) of the Act 41 in that it seeks to Securities and Exchange Commission, cause an AL or market order to automatically assure economically efficient execution 450 Fifth Street, NW., Washington, DC execute: The quotation is 20.46 bid, offered at 20.50, of securities transactions, makes it 20549–0609. × practicable for brokers to execute 1,000 500. The bid is an AL order limited All submissions should refer to File to 20.52. The next best offer on the book is investors’ orders in the best market, and Number SR–NYSE–2004–05. This file 20.51 for 1,000 shares. An NX market order provides an opportunity for investors’ number should be included on the to buy 500 shares arrives. The NX order orders to be executed without the subject line if e-mail is used. To help the automatically executes against the offer at participation of a dealer. Commission process and review your 20.50. The AL buy order automatically comments more efficiently, please use executes against the next best offer, 20.51. If B. Self-Regulatory Organization’s 1,000 shares had been offered at 20.50 Statement on Burden on Competition only one method. The Commission will instead of 500 shares, the AL order post all comments on the Commission’s The Exchange does not believe that automatically executes at 20.50 for 500 Internet Web site (http://www.sec.gov/ the proposed rule change, as amended, shares and 500 shares at 20.51, presuming rules/sro.shtml). Copies of the will impose any burden on competition the AL order’s limit permits it to trade at submission, all subsequent 20.51. that is not necessary or appropriate in amendments, all written statements 3. The arrival of an order at a better price furtherance of the purposes of the Act. with respect to the proposed rule on the same side of the market as an AL or C. Self-Regulatory Organization’s change that are filed with the market order causes the AL or market order Statement on Comments on the Commission, and all written to automatically execute: The quote is 20.46 bid, offered at 20.50. Proposed Rule Change Received From communications relating to the The next best offer on the book is at 20.51. Members, Participants or Others proposed rule change between the The bid is an AL order. An order to buy at The Exchange has neither solicited Commission and any person, other than 20.47 arrives. A new bid of 20.47 is nor received written comments on the those that may be withheld from the autoquoted. The buy AL order automatically proposed rule change. public in accordance with the executes against the 20.50 offer. provisions of 5 U.S.C. 552, will be 4. A change in the displayed contra-side III. Date of Effectiveness of the available for inspection and copying in price that creates a minimum variation Proposed Rule Change and Timing for the Commission’s Public Reference market or allows execution of the AL or Commission Action Section, 450 Fifth Street, NW., market order with price improvement causes the AL or market order to automatically Within 35 days of the date of Washington, DC 20549. Copies of such execute: publication of this notice in the Federal filing also will be available for The quote is 20.46 bid, offered at 20.50. Register or within such longer period (i) inspection and copying at the principal The bid is comprised of an AL or market as the Commission may designate up to office of the Exchange. All comments order. A limit order to sell at 20.49 arrives 90 days of such date if it finds such received will be posted without change; longer period to be appropriate and the Commission does not edit personal 42 17 CFR 200.30–3(a)(12). publishes its reasons for so finding or identifying information from 43 Automatic execution orders are designated NX. submissions. You should submit only 44 The Commission corrected a typographical error in this example. Telephone conversation 39 15 U.S.C. 78f(b). information that you wish to make between Kelly Riley, Assistant Director, Division, 40 15 U.S.C. 78f(b)(5). available publicly. All submissions Commission, and Don Siemer, Director, Market 41 15 U.S.C. 78k–1(a)(1). should refer to File Number SR–NYSE– Surveillance, NYSE, on November 12, 2004.

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on the book. The AL or market order 9,000 shares, is not displayed. An NX market 10. The specialist algorithm may automatically executes against this new offer, order to buy 8,000 shares arrives. The automatically facilitate a single price to the extent of the volume associated with following automatic executions take place: execution at the Exchange best bid or offer: the new offer and then sweeps the book until 2,000 shares from the book, 1,000 shares from The quote is 20.05 bid, offered at 20.07, filled, an LRP is reached or, in the case of an the displayed interest of the Floor broker, 1,000 × 1,000. The next best bid on the book AL order, its limit price is reached. and 5,000 shares from the specialist interest is 2,000 shares at 20.03. An NX market order 5. Where the limit of an AL order prevents trade at 20.36. The 9,000 shares of reserve to sell 2,000 shares arrives and the preset it from trading, the AL order will be quoted broker file sell interest does not participate parameters of the algorithm determine to and handled as a regular limit order on the in the trade, since the entire buy order can facilitate an execution of the sell order at a book: be filled by the displayed interest. single price. The sell order automatically The quote is 20.05 bid, offered at 20.09, 8. Broker agency interest participates on executes against the bid and the specialist 2,000 × 2,000. An AL order arrives to buy parity during sweeps: automatically buys the remaining 1,000 3,000 shares at 20.12, which is autoquoted as (a) The quote is 20.05 bid, offered at 20.07, shares at the bid price of 20.05. Had the the best bid, 20.06 for 3,000 shares. Also on 1,500 × 1,000. The book also shows bids of specialist not done so, the sell order would the book are the following offers: 1,500 1,600 shares to buy at 20.04, 2,000 shares to have traded at two prices—1,000 shares at shares at 20.10, 1,500 shares at 20.11, 1,000 buy at 20.03, and 1,000 shares to buy at 20.05 and 1,000 shares at 20.03. By shares at 20.12 and 1,000 shares at 20.13. An 20.02. Broker agency interest to buy 2,600 facilitating a single price execution, the NX market order to buy 6,000 shares arrives, shares at 20.04 arrives. An order to sell 4,700 specialist gave price improvement to the sell automatically executing 2,000 shares at shares at 20.03 arrives and automatically order. 20.09, with 4,000 shares sweeping the book, executes. 1,500 shares trade at the bid of 11. Specialist algorithm may provide price executing at 20.12. This execution depletes 20.05 and the remaining 3,200 shares trade improvement between the bid and offer if the liquidity on the book at 20.12. The at 20.04, with the book receiving 1,600 shares certain conditions are met: original AL order is pushed to trade by the and the broker agency interest receiving (i) The quotation spread is at least three NX order, but its limit, 20.12, prevents it 1,600 shares. 1,000 shares to buy remain in cents; from trading at the next available offer price, the broker agency interest file at 20.04. The (ii) The specialist is represented in the 20.13. The AL order goes on the book as a market is autoquoted 20.04 bid, offered at published bid or offer: The lesser of 10,000 regular limit order and the market is 20.07, 1,000 × 1,000. The volume associated shares or 20% of the respective bid/offer size; autoquoted 20.12 bid, offered at 20.13, 3,000 with the bid is the 1,000 shares remaining in (iii) The order receiving price improvement × 1,000. the broker agency interest file. is 2,000 shares or less and the entire order is filled; and Broker Agency Interest File (b) The quote is 20.05 bid, offered at 20.07, 1,500 × 1,000. Also shown on the book is (iv) The price improvement provided by 6. A minimum of 1,000 shares of broker 2,000 shares bid at 20.03 and 1,000 shares the specialist is (a) at least .02 where the agency interest per broker at the Exchange bid at 20.02. The broker agency interest file quote spread is .03–.05, (b) at least .03 where best bid or offer will be displayed at that has 2,000 shares bid at 20.04. An order to sell the quote spread is .06–.10, (c) at least .04 price and be on parity with other displayed 5,000 shares at 20.03 arrives and where the quote spread is .11–.20, and (d) at interest, other than interest entitled to automatically executes. 1,500 shares trade at least .05 where the quote spread is more than priority: 20.05 (the bid price) and the remainder of the .20. The quote is 20.05 bid, offered at 20.07, sell order, 3,500 shares, trades at 20.03, the The market is 20.31 bid, offered at 20.36, × 1,500 x 1,000. A Floor broker enters interest sweep price. Trading at 20.03 are the 2,000 1,500 3,000. The offer size includes 1,000 in the agency interest file to buy 2,000 shares shares of broker agency interest that was in shares on behalf of the specialist. The at 20.04 and to buy 1,000 shares at 20.05. The the file to buy at 20.04 and 1,500 shares on specialist interest represents 33% of the offer quote automatically updates to show 2,500 the book to buy at 20.03. size (1,000 shares/3,000 shares at 20.36). A shares to buy at 20.05, which includes the limit order arrives to buy 2,000 shares at 1,000 shares of broker agency interest to buy Specialist Interest and Algorithm 45 20.36. The algorithm determines to provide at 20.05 because it is at the best bid; the 9. Specialist interest may automatically price improvement to this order and 2,000 amount shown on NYSE OpenBook to buy supplement the size of the Exchange best bid shares automatically execute at 20.34. The at 20.04 will not change as broker agency and offer, but always yields to orders on the market then is autoquoted 20.31 bid, offered interest will not be disseminated. The book: at 20.36, 1,500 × 3,000. aggregate broker file information available to The quote is 20.05 bid, offered at 20.07, 12. Better priced specialist interest yields the specialist will show 2,000 shares to buy 1,500—1,000. The bid is comprised of limit to the book at a worse price during a residual at 20.04, unless the broker has excluded it orders on the book. The specialist algorithm sweep: from the aggregate information. An order automatically generates a bid for 1,000 shares The quotation is 20.05 bid, offered at 20.07, arrives on the book to buy 1,500 shares at at 20.05. The size of the bid automatically 1,500 × 1,000. 1,000 shares to buy at 20.04 20.06. The market autoquotes 20.06 bid, changes to 2,500. A new limit order to buy arrives in the broker agency interest file. offered at 20.07, 1,500 × 1,000. Only 1,500 500 shares at 20.05 arrives and the size Specialist interest arrives to buy 1,000 at shares to buy at 20.05 is shown on NYSE associated with the bid automatically 20.04. 2,000 shares to buy are on the book at OpenBook, which does not include any changes to 3,000 shares. Agency interest to 20.03. A limit order to sell 3,600 shares at broker agency interest. The aggregate broker buy 1,500 shares at 20.05 is entered in the 20.03 arrives and automatically executes, as information available to the specialist will broker agency interest file. Assuming the follows: 1,500 trades against the bid at 20.05, show 1,000 shares to buy at 20.05 and 2,000 broker displays all 1,500 shares, the bid size with the remaining amount, 2,100 shares, shares to buy at 20.04 unless one or both automatically changes again, to 4,500 shares. sweeping the book to trade at 20.03. Orders have been excluded from the aggregate The first 1,500 share buy limit order on the on the book trade 1,100 shares and the broker information by the broker. book has priority, the 500 share buy limit agency file trades 1,000 shares. This leaves 7. Brokers have discretion to display more order on the book and the 1,500 share broker 900 shares on the book to buy at 20.03. The than 1,000 shares at the best bid or offer. The agency buy interest are on parity. The specialist interest to buy at 20.04 does not displayed size is entitled to parity. specialist interest must yield to the book. An trade even though it is better priced, because Undisplayed reserve at the best bid or offer order to sell 3,500 shares at 20.05 arrives and orders remain on the book to buy at 20.03 yields to displayed interest at the best bid or automatically executes at 20.05. The contra- and the specialist must yield. If no buy offer. side consists of the first 1,500 shares to buy, orders on the book capable of trading at 20.03 The quote is 20.31 bid, offered at 20.36, the second order to buy 500 shares and the remained and the sell order had not been 1,500 × 7,000. The 7,000 share offer side broker agency buy interest for 1,500 shares. filled, the specialist interest would be able to consists of 2,000 shares on the book and trade as part of the sweep on parity with any 5,000 shares of specialist interest. A Floor 45 All specialist trading, whether manual or broker agency interest at that price. broker enters interest in the agency interest electronically generated by algorithms, must be in 13. Specialist interest trades during a file to sell 10,000 shares at 20.36. 1,000 of the accordance with Exchange Rules. These examples sweep, adding liquidity and improving a shares are displayed and the reserve interest, presume compliance with these rules. sweep price:

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The quotation is 20.05 bid, offered at 20.07, the Exchange. If all or part of one or both shares to sell at 20.45, and 14,000 shares to 1,500 × 1,000. 1,000 shares to buy at 20.04 commitments are not satisfied, they will sell at 20.46. An IOC order arrives to buy arrived in the broker agency interest file. return to the Exchange and trade at the prices 36,000 shares at 20.45. 2,000 shares Specialist interest to buy 1,000 shares at then available. Under proposed Regulation automatically execute against the offer at 20.04 arrives. 2,000 shares are on the book to NMS,46 had the member entering the order 20.36. The order sweeps the book to the LRP, buy at 20.03. A limit order to sell 3,500 indicated that it was contemporaneously trading 28,000 shares at 20.45. The offers on shares at 20.03 arrives and automatically satisfying better prices away, none of the the book from 20.37 to 20.44 receive price executes as follows: 1,500 shares trade order would have been auto routed. A new improvement at 20.45. The residual, 6,000 against the bid at 20.05, with the remaining quote is autoquoted, 20.05 bid, offered at shares, automatically cancels. The market is 2,000 shares trading with the broker agency 20.10, 2,000 × 2,500. autoquoted 20.30 bid, offered at 20.46, 1,500 buy interest and specialist buy interest at 17. Orders are auto routed to multiple × 14,000. Automatic executions and 20.04. away markets publishing better bids or offers: autoquote resume automatically in five 14. During sweeps, specialist interest The Exchange quote is 20.05 bid, offered at seconds if the specialist has not manually trades if no orders remain on the book at the 20.08, 2,000 × 2,500. The national best offer, traded or re-quoted the market before then. sweep price: at 20.07 for 1,000 shares, is published by 20. Where the sweeping order is not filled The quote is 20.05 bid, offered at 20.07, market center B. A third market center, P, before the LRP is reached, and is able to trade 1,600 × 1,000. Broker agency interest to buy also displays an offer to sell 500 shares at of above (below) the LRP, but its limit price 800 shares at 20.04 arrives. Specialist interest 20.07. An NX market order to buy 2,500 does not create a locked or crossed market— to buy 800 shares at 20.04 arrives. The book shares arrives on the Exchange. The automatic executions and autoquote resumes shows 1,000 shares to buy at 20.03. A limit specialist would have two options: Match the automatically in no later than 10 seconds. order to sell 3,600 shares at 20.03 arrives. better displayed offers or ship the order to The quotation is 20.30 bid, 20.36 offered, The sell order automatically executes 1,600 market centers B and P: 1,500 × 2,000. The LRP is 20.45. The next shares against the bid at 20.05, with the (a) If the better priced offers away are not best offers on the book are 1,000 shares to sell residual, 2,000 shares, sweeping the book at electronically matched by the specialist, at 20.37, 4,000 shares to sell at 20.38, 1,500 20.03. The book trades 1,000 shares, the 1,000 shares of the buy order are auto routed shares to sell at 20.39, 5,000 shares to sell at broker file trades 800 shares and the as a commitment to buy to market center B 20.40, 500 shares to sell at 20.41, 2,000 specialist file trades 200 shares. and 500 shares of the buy order are auto shares to sell at 20.42, 8,000 shares to sell at 15. During a sweep, specialist interest routed as a commitment to buy to market 20.43, 3,000 shares to sell at 20.44, 3,000 trades on parity with broker interest, as long center P. The remainder, 1,000 shares to buy, shares to sell at 20.45, and 5,000 shares to as no orders on the book at the sweep price automatically executes against the Exchange sell at 20.47. An order to buy 36,000 shares remain: offer at 20.08. at 20.46 arrives. The first 2,000 automatically The quote is 20.05 bid, offered at 20.07, (b) If the specialist matches the better price executes against the offer at 20.36. The 1,500 × 1,000. Broker agency interest to buy offers away, he or she would have to fill the remainder sweeps the book to the LRP at 2,000 shares at 20.03 arrives. Specialist entire buy order of 2,500 shares at 20.07 20.45, with 28,000 being executed. Offers at 47 interest to buy 2,000 shares at 20.03 arrives. before trading at 20.08. 20.37 through 20.45 trade at the sweep price The book shows 1,000 shares to buy at 20.03. 18. Specialist algorithm may automatically of 20.45, receiving price improvement. A A limit order to sell 5,500 shares at 20.03 match the better displayed ITS bid or offer residual of 6,000 shares to buy remains arrives. The sell order automatically executes or ship the order: limited at 20.46. The market auto-quotes The Exchange quotation is 20.05 bid, × 1,500 shares against the bid at 20.05, with the × 20.45 bid, offered at 20.47, 6,000 5,000. residual, 4,000 shares, sweeping the book to offered at 20.07, 2,000 1,000. The better Here, since a LRP is reached and a residual trade at 20.03. The book and the broker file displayed ITS offer to sell 400 shares at 20.06 capable of trading at a price above the LRP are on parity and each trade 1,000 shares. is published by another market center. A remains, but the residual does not lock or Once the buy order on the book is filled at market order to buy 1,400 shares arrives and cross the market, automatic executions and 20.03, the specialist interest can trade, on based on predetermined parameters, the autoquote will automatically resume in 10 specialist algorithm decides to match or ship: parity with the broker file. The remaining seconds unless the specialist manually trades Option 1—The specialist matches the 1,000 shares of broker buy interest and 1,000 or re-quotes the market before then. better displayed offer, automatically shares of specialist buy interest also trade. 21. Where the order sweeping the book is executing 1,400 at 20.06. 16. During a sweep, the best bid or offer not filled during the sweep, and is able to Option 2—The specialist sends 400 shares displayed on each ITS market center is trade above (below) the LRP, but the limit of the buy order to the other market center, checked to avoid a trade-through: price creates a locked or crossed market, satisfying the better displayed offer. The The Exchange quote is 20.05 bid, offered at automatic executions and autoquote are remaining 1,000 shares of the buy order is 20.07, 2,000 × 1,000. The ITS best offer is suspended until a manual trade occurs. automatically executed against the offer at also 20.07 for 1,000 shares, published by The quotation is 20.30 bid, offered at 20.36, 20.07. market center B. A third market center, P, 1,500 × 2000. The LRP is 20.45. Also on the displays 500 shares to sell; at an inferior offer Sweep LRP book are the following offers: 1,000 shares to of 20.08. Also on the book are offers at 20.08 19. Where the order sweeping the book is sell at 20.37, 4,000 shares to sell at 20.38, for 1,000 shares, at 20.09 for 1,000 shares, filled after trading at the LRP price or a 1,500 shares to sell at 20.39, 5,000 shares to and at 20.10 for 3,000 shares. An NX market residual exists limited to the LRP price, sell at 20.40, 500 shares to sell at 20.41, 2,000 order arrives on the Exchange to buy 5,000 automatic executions and autoquote shares to sell at 20.42, 8,000 shares to sell at shares. 1,000 shares automatically execute automatically resume in no more than five 20.43, 3,000 shares to sell at 20.44, 3,000 against the Exchange offer at 20.07. 1,000 seconds: shares to sell at 20.45, and 14,000 shares to shares of the order are auto routed as a The quotation is 20.30 bid, offered at 20.36, sell at 20.46. An order to buy 36,000 shares commitment to buy at 20.07 to market center 1,500 × 2,000. The LRP is 20.45. The next at 20.46 arrives. 2,000 shares automatically B. The remainder, 3,000 shares, sweep the best offer is 20.46 for 14,000 shares. The execute against the offer at 20.36. The book to 20.10. However, because the sweep following offers are on the book: 1,000 shares remainder sweeps the book to the LRP at price, 20.10, is inferior to the best offer to sell at 20.37, 4,000 shares to sell at 20.38, 20.45. Offers on the book from 20.37 to 20.45, displayed by market center P (20.08), 500 1,500 shares to sell at 20.39, 5,000 shares to 28,000 shares, trade at 20.45, receiving price shares of the buy order residual are auto sell at 20.40, 500 shares to sell at 20.41, 2,000 improvement. The residual, 6,000 shares to routed as a commitment to buy at 20.08 to shares to sell at 20.42, 8,000 shares to sell at buy cannot continue sweeping because the market center P and only 2,500 shares of the 20.43, 3,000 shares to sell at 20.44, 3,000 LRP has been reached. The market is buy order trade at 20.10 on the Exchange. If autoquoted the LRP, 20.45, offered at 20.46, both auto routed commitments are satisfied, 46 See note 23, supra. the next available offer on the book. Because the executions are as follows: 1,000 shares at 47 Telephone conversation between Kelly Riley, the residual’s limit price, 20.46, creates a 20.07 on the Exchange, 1,000 shares at 20.07 Assistant Director, Division, Commission, and Jeff locked market, a manual trade or quote is on market center B, 500 shares at 20.08 on Rosenstrock, Senior Special Counsel, Market required for automatic execution and market center P, and 2,500 shares at 20.10 on Surveillance, NYSE, on November 15, 2004. autoquote to resume.

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22. Specialist interest trades during a at 20.38, 1,500 shares offered at 20.39, 5,000 27,000 shares, sweeping the book, executing sweep, adding liquidity and improving a shares offered at 20.40, 500 shares offered at at 20.43. The 5,000 shares of specialist sell sweep price: 20.41, 2,000 shares offered at 20.42, 8,000 interest at 20.37 participate in the sweep. The quotation is 20.30 bid, offered at 20.36, shares offered at 20.43, 3,000 shares offered Without the specialist sell interest, the book 1,500 × 2,000. The sweep LRP is 20.45. at 20.44, and 3,000 shares offered at 20.45. would have been swept to 20.45 (the LRP), Specialist interest to sell 5,000 shares at A limit order to buy 29,000 shares at 20.45 a worse price for the buyer. 20.37 arrives. The book consists of 1,000 arrives. 2,000 shares automatically execute at 23. Momentum Liquidity Replenishment shares offered at 20.37, 4,000 shares offered 20.36, with the residual of the buy order, Point (MLRP).

24. MLRP may be reached during an the MLRP to change from 19.90 to 19.92 The residual, 500 shares, sweeps the book, automatic execution, pausing a sweep: (20.17 less .25) on the low side. The MLRP trading at the next best offer, 20.13. The At 10:05:36, the bid is 20.05, offered at on the high side, 20.20 has remained the quote automatically updates to 20.05 bid, 20.09, 1,500 × 1,000. The books shows same. The residual of the buy limit order, offered at 20.17, 1,500 × 1,000. additional offers of 500 shares to sell at 1,000 shares, cannot sweep the book to the At 10:05:40, a limit order to buy 5,000 20.13, 1,000 shares to sell at 20.17, 1,500 next available offer at 20.21, because that shares at 20.21 arrives crossing the market. shares to sell at 20.21, 1,000 shares to sell at price is outside the MLRP range. The market 1,000 shares automatically execute at the 20.22, and 2,000 shares to sell at 20.25. The is autoquoted 20.20 bid (the MLRP) for 1,000 offer, 20.17. This creates a new high price MLRP range, based on the high and low shares, 1,500 offered at 20.21. Automatic within the operative 30-second parameter trades during the prior 30 seconds (20.15 and executions and autoquote are suspended. As (20.17) causing the MLRP range to change 19.92 for the purposes of this example) are the order to buy is capable of trading at from 19.90 on the low side to 19.92 (20.17 19.90 and 20.17. 20.21, locking the market, a manual trade less .25). The MLRP on the high side remains An NX market order to buy 1,500 shares clearing the locked condition will cause at 20.20. The buy order residual, 4,000 arrives. 1,000 shares automatically execute at automatic executions and autoquoting to shares, sweeps the book to 20.19. 3,000 20.09 and the residual, 500 shares, sweeps resume and the quote automatically updates shares trade at that price, exhausting the the book, trading at 20.13. The quote to 20.05 bid, offered at 20.21, 1,500 × 500. available liquidity within the MLRP range. automatically updates to 20.05 bid, offered at 25. MLRP may be reached during a sweep, The quote automatically updates, bidding the 20.17, 1,500 × 1,000. providing a partial sweep: remaining size of the residual, 1,000 shares, A second later, at 10:05:37, the high and At 10:05:36, the bid is 20.05, offered at at 20.20, the MLRP, offering 1,500 shares at low trades within the new 30-second period 20.09, 1,500 × 1,000. The book shows 20.22, the next best offer on the book. An are 19.95 and 20.15 and the corresponding additional offers of 500 shares at 20.13, 1,000 automatic execution cannot occur at 20.22 as new MLRP range is 19.90 and 20.20. shares at 20.17, 2,000 shares at 20.18, 1,000 that price is outside the MLRP range, so At 10:05:40, a limit order arrives to buy shares at 20.19, and 1,500 shares at 20.22. automatic executions and autoquote are 2,000 shares at 20.21. This crosses the market The MLRP range is 19.90–20.20, based on suspended. Cancellations and orders are as the offer is at 20.17. The crossing buy high and low trades within the operative 30- electronically reflected on the book. order automatically executes against the offer second period (19.92 and 20.15 in this Electronic executions and autoquote will (1,000 shares) at 20.17, creating a new high example). resume automatically in 10 seconds, unless trade within the operative 30-second MLRP An NX market order to buy 1,500 shares the specialist manually trades the security time parameter. This new high price causes arrives and automatically executes at 20.09. before then, or the MLRP range changes.

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Once autoquote resumes, the bid will book because that would violate short sale language is in italics; proposed automatically change to 20.21 for 1,000 rules. The market is autoquoted 20.04 bid, deletions are in brackets. shares, the limit price and the size of the the next best bid on the book, offered at residual. The offer remains 20.22 for 1,500 20.05, the price at which the sell short order * * * * * × shares. can trade, 1,000 1,500. Rule 7 Equities Trading 26. Gap Quote. [FR Doc. 04–25771 Filed 11–19–04; 8:45 am] The quotation is 20.08 bid, offered at 20.09, BILLING CODE 8010–01–P Rule 7.31 Orders and Modifiers 10,000 × 5,000, last sale at 20.08. Crowd interest arrives to buy 350,000 shares at the (a)–(r)—No change. market. The specialist executes 5,000 shares at the offer, 20.09, then gaps the quote, SECURITIES AND EXCHANGE (s)(1)–(2)—No change. making the bid price ‘‘touch’’ the last sale COMMISSION (3) Following the execution price (20.09), showing the size of the parameters described above, any imbalance in that bid (345,000 shares). On [Release No. 34–50668; File No. SR–PCX– unexecuted portion of a Cross Order the contra side, the specialist makes the offer 2004–90] shall be cancelled, unless the Cross the price where stock may trade if no other Order has been designated as a Cross sell interest arrives, and the size as 100 Self-Regulatory Organizations; Notice and Post, as defined in Rule 7.31(ff), in shares, to draw in sellers. Thus, e.g., the gap of Filing and Immediate Effectiveness quote 48 is 20.09 bid, offered at 20.30, which case any unexecuted portion will 345,000 × 100. Automatic executions and of Proposed Rule Change by the be displayed in Arca Book at the cross autoquote are suspended, but incoming Pacific Exchange, Inc. To Extend the price. Applicability of the Cross-and-Post orders and cancellations are reflected (t)–(aa)—No change. electronically on the book. Crowd, specialist Functionality on the Archipelago interest and other liquidity providers are Exchange Facility to PNP Cross Orders (bb) PNP (Post No Preference) Cross taken into account in determining the price Order. A Cross Order that is to be and size of the next transaction. Automatic November 16, 2004. executed in whole or in part on the executions and autoquote then resume. Pursuant to Section 19(b)(1) of the Corporation and the portion not so 27. Tick-restricted Orders. Securities Exchange Act of 1934 executed is to be canceled, without (a) The quotation is 20.05 bid, offered at (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 routing any portion of the Cross Order 20.07, 1,500 × 1,000. Other orders on the book to sell include 1,000 at 20.09 (sell notice is hereby given that on November to another market center. When the short), and 1,000 at 20.11 (sell plus). An NX 3, 2004, the Pacific Exchange, Inc. cross price is equal to or better than the market order to buy 2,500 shares arrives. (‘‘PCX’’ or ‘‘Exchange’’) filed with the NBBO and is at the BBO, the relevant 1,000 shares of the buy order are Securities and Exchange Commission portion of the PNP Cross Order will be automatically executed against the 1,000 (‘‘Commission’’) the proposed rule matched first against displayed orders shares offered at 20.07. The remaining 1,500 change as described in items I, II, and with priority in the Arca Book, and then shares to buy sweep up to 20.11. The sell III below, which items have been the remainder of the PNP Cross Order short and sell plus orders are executable as prepared by the PCX. On November 10, will be matched. Any unexecuted the sweep occurs on a direct plus tick. As a 2004, the PCX filed Amendment No. 1 portion of the PNP Cross will be result, the 20.09 sell short offer on the book 3 is price improved to 20.11. to the proposed rule change. The canceled, unless the PNP Cross Order (b) The quotation is 20.05 bid, offered at Exchange proposed the rule change has been designated as a Cross and 20.07, 1,500 × 1,000. Also on the book to buy under Section 19(b)(3)(A) of the Act 4 Post, as defined in Rule 7.31(ff), in are 1,000 shares (buy minus) at 20.04, 1,000 and Rule 19b–4(f)(6) thereunder,5 which which case any unexecuted portion will shares to buy at 20.03 and 1,500 shares to renders it effective upon filing.6 The be displayed in Arca Book at the cross buy at 20.01. An NX order to sell 3,000 Commission is publishing this notice to price. The Corporation will cancel shares arrives, automatically executing 1,500 solicit comments on the proposed rule either the entire PNP Cross Order at the shares against the bid at 20.05, sweeping change, as amended, from interested time of order entry, or the unexecuted down to 20.03. The 1,000 share bid at 20.04 persons. portion of a PNP Cross Order (whether was executable as the sweep occurred on a minus tick. or not it has been designated as a Cross I. Self-Regulatory Organization’s and Post) at any time during the order (c) The quotation is 20.05 bid, offered at Statement of the Terms of Substance of × execution process, whichever is 20.07, 1,500 1,000. Also on the book to buy the Proposed Rule Change are 1,000 shares at 20.04, 1,000 shares to buy applicable, if: at 20.03, and 1,500 shares to buy at 20.01. The PCX, through its wholly owned (1) The cross price would cause an The last sale is at 20.04. An NX order to sell subsidiary PCX Equities, Inc. (‘‘PCXE’’), execution at a price that trades through short 3,000 shares arrives. The security in proposes to amend its rules relating to question is not part of the Regulation SHO the NBBO, except as provided in Rule pilot.49 1,500 shares automatically execute at the Cross and Post Order to make clear 7.37; 20.05. The residual, 1,500, cannot sweep the that this order type applies to PNP Cross (2) The cross price is between the Orders. BBO and does not improve the BBO by 48 See Securities Exchange Act Release No. 50237 The text of the proposed rule change, the MPII pursuant to Rule 7.6(a), (August 24, 2004), 69 FR 53123 (August 31, 2004) as amended, is below. Proposed new Commentary .06. (SR–NYSE–2004–37) (Information Memo 04–27— June 9, 2004). The gapped quote procedures provide (cc)–(ee)—No Change. that a gapped quotation should remain in place for 1 15 U.S.C. 78s(b)(1). a reasonable time to allow for interested parties to 2 17 CFR 240.19b–4. (ff) Cross-and-Post Order. A Cross respond to the order imbalance. What constitutes a 3 Amendment No. 1 replaced and superseded the Order or PNP Cross Order that is to be reasonable time is determined by the unique original filing in its entirety. executed in whole or in part on the circumstances of each gapped quotation situation. 4 15 U.S.C. 78s(b)(3)(A). Corporation [pursuant to Rule 7.31(s)] However, the gapped quotation generally should 5 17 CFR 240.19b–4(f)(6). last at least 30 seconds unless offsetting interest is where any unexecuted portion of the 6 For purpose of calculating the 60-day period received earlier, and generally should not exceed within which the Commission may summarily Cross-and-Post Order will be displayed two minutes, unless circumstances require abrogate the proposed rule change under Section in the Arca Book at the cross price. otherwise. The duration of a gapped quote is 19(b)(3)(C) of the Act, the Commission considers determined with input from a Floor Official. (1)–(2)—No Change. that period to commence on November 10, 2004, 49 See note 13, supra. the date that the PCX filed Amendment No. 1. * * * * *

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II. Self-Regulatory Organization’s Order, any unexecuted portion of the investors and the public interest.15 Statement of the Purpose of, and PNP Cross will post to the Arca Book if Therefore, the proposed rule change has Statutory Basis for, the Proposed Rule certain pricing conditions provided in become effective pursuant to Section Change the existing rule are met.9 The Exchange 19(b)(3)(A) of the Act16 and Rule 19b– 17 In its filing with the Commission, the believes that implementing these 4(f)(6) thereunder. Exchange included statements changes will provide investors and ETP At any time within 60 days of the concerning the purpose of, and basis for, Holders10 with greater opportunities for filing of the proposed rule change, the the proposed rule change and discussed executing orders with the Cross-and- Commission may summarily abrogate any comments it received on the Post functionality. the rule change if it appears to the Commission that the action is necessary proposed rule change. The text of these 2. Statutory Basis statements may be examined at the or appropriate in the public interest, for places specified in item IV below. The The Exchange believes that the the protection of investors, or would proposed rule change is consistent with otherwise further the purposes of the Exchange has prepared summaries, set 18 forth in sections A, B, and C below, of Section 6(b) of the Act,11 in general, and Act. the most significant aspects of such furthers the objectives of Section 6(b)(5) IV. Solicitation of Comments of the Act,12 in particular, in that it is statements. Interested persons are invited to designed to prevent fraudulent and submit written data, views, and A. Self-Regulatory Organization’s manipulative acts and practices, to Statement of the Purpose of, and arguments concerning the foregoing, promote just and equitable principals of including whether the proposed rule Statutory Basis for, the Proposed Rule trade, to foster cooperation and Change change is consistent with the Act. coordination with persons engaged in Comments may be submitted by any of 1. Purpose facilitating transactions in securities, the following methods: As part of its continuing efforts to and to remove impediments to and Electronic Comments enhance participation on the perfect the mechanism of a free and Archipelago Exchange (‘‘ArcaEx’’) open market and a national market • Use the Commission’s Internet facility, the PCX is proposing to amend system. comment form (http://www.sec.gov/ PCXE Rule 7.31(ff) to clarify that the rules/sro.shtml); or B. Self-Regulatory Organization’s • Cross-and-Post Order type may be Statement on Burden on Competition Send an e-mail to rule- applied to the PNP (Post No Preference) [email protected]. Please include File Cross Order type.7 The Exchange does not believe that No. SR–PCX–2004–90 on the subject Currently, PCXE Rule 7.31(ff) states the proposed rule change will impose line. that the Cross-and-Post Order any burden on competition that is not Paper comments necessary or appropriate in furtherance functionality is limited to Cross Orders • defined in PCXE Rule 7.31(s).8 PCXE of the purposes of the Act. Send paper comments in triplicate to Jonathan G. Katz, Secretary, Rule 7.31(s) defines the basic ArcaEx C. Self-Regulatory Organization’s Cross Order. Because the ArcaEx Securities and Exchange Commission, Statement on Comments on the 450 Fifth Street, NW., Washington, DC rulebook now includes cross order types Proposed Rule Change Received From defined in other paragraphs of PCXE 20549–0609. Members, Participants, or Others All submissions should refer to File Rule 7.31, the Exchange proposes to No. SR–PCX–2004–90. This file number clarify PCXE Rule 7.31(ff) so that the Written comments on the proposed should be included on the subject line Cross-and-Post functionality will be rule change were neither solicited nor if e-mail is used. To help the understood to be available for PNP received. Commission process and review your Cross Orders. Accordingly, the III. Date of Effectiveness of the comments more efficiently, please use Exchange proposes to delete the Proposed Rule Change and Timing for only one method. The Commission will reference to PCXE Rule 7.31(s) in the Commission Action post all comments on the Commission’s current PCXE Rule 7.31(ff) text. In Internet Web site (http://www.sec.gov/ addition, minor changes are proposed PCX has designated that the proposed rules/sro.shtml). Copies of the for PCXE Rule 7.31(s) to make clear that rule change as a ‘‘non-controversial’’ submission, all subsequent any unexecuted portion of a basic Cross rule change pursuant to Section amendments, all written statements Order is cancelled. 19(b)(3)(A) of the Act13 and Further, the Exchange proposes to with respect to the proposed rule subparagraph (f)(6) of Rule 19b–4 change that are filed with the amend PCXE Rule 7.31(bb), which thereunder.14 The Exchange has stated defines the PNP Cross Order, and PCXE Commission, and all written that the foregoing rule change: (1) Does communications relating to the Rule 7.31(ff) to clarify that the Cross and not significantly affect the protection of Post functionality will be available for proposed rule change between the investors or the public interest; (2) does Commission and any person, other than PNP Cross Orders. Currently, the not impose any significant burden on unexecuted portion of any PNP Cross those that may be withheld from the competition; and (3) by its terms does public in accordance with the Order cancels as described in PCXE not become operative for 30 days after Rule 7.31(bb). The proposed rule change the date of this filing, or such shorter 15 Rule 19b–4(f)(6)(iii) under the Act also requires specifies that when Cross and Post time as the Commission may designate, that a self-regulatory organization provide the functionality is applied to a PNP Cross if consistent with the protection of Commission with written notice of its intent to file a proposed rule change, along with a brief 7 See PCXE Rule 7.31(bb). description and text of the proposed rule change, 9 See supra note 7. 8 The relevant portion of PCXE Rule 7.31(ff) at least five days prior to the date of filing the 10 See PCXE Rule 1.1 (n). reads: ‘‘A Cross Order that is to be executed in proposed rule change. The Exchange complied with 11 whole or in part on the Corporation pursuant to 15 U.S.C. 78f(b). this requirement. Rule 7.31(s) where any unexecuted portion of the 12 15 U.S.C. 78f(b)(5). 16 See supra note 4. Cross-and-Post Order will be displayed in the Arca 13 See supra note 4. 17 See supra note 5. Book at the cross price.’’ 14 See supra note 5. 18 See supra note 6.

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provisions of 5 U.S.C. 552, will be disaster area as a result of damages Please log-in 10 minutes before the available for inspection and copying in caused by flooding and tornadoes conference. the Commission’s Public Reference created by remnants of Hurricane Jeanne Anyone wishing to make an oral Room, 450 Fifth Street, NW., that occurred on September 20, 2004. presentation to the Board must contact Washington, DC 20549. Copies of such Applications for loans for physical Balbina Caldwell, Director, National filing will also be available for damage as a result of this disaster may Advisory Council, no later than Friday, inspection and copying at the principal be filed until the close of business on November 19, 2004, 409 3rd Street, SW., office of the PCX. All comments January 11, 2005, and for economic Washington, DC 20516, (202) 205–6914 received will be posted without change; injury until the close of business on phone, or (202) 481–4678 fax, or e-mail: the Commission does not edit personal August 10, 2005, at the address listed [email protected]. identifying information from below or other locally announced Matthew K. Becker, submissions. You should submit only locations: U.S. Small Business information that you wish to make Administration, Disaster Area 2 Office, Committee Management Officer. available publicly. All submissions One Baltimore Place, Suite 300, Atlanta, [FR Doc. 04–25752 Filed 11–19–04; 8:45 am] should refer to File No. SR–PCX–2004– GA 30308. BILLING CODE 8025–01–P 90 and should be submitted on or before The interest rates are: December 13, 2004. For the Commission, by the Division Percent DEPARTMENT OF TRANSPORTATION of Market Regulation, pursuant to delegated authority.19 For Physical Damage: Federal Aviation Administration Homeowners With Credit Avail- Margaret H. McFarland, able Elsewhere ...... 6.375 [Summary Notice No. PE–2004–85] Deputy Secretary. Homeowners Without Credit Available Elsewhere ...... 3.187 Petitions for Exemption; Summary of [FR Doc. E4–3269 Filed 11–19–04; 8:45 am] Businesses With Credit Available Petitions Received BILLING CODE 8010–01–P Elsewhere ...... 5.800 Businesses and Non-Profit Orga- AGENCY: Federal Aviation nizations Without Credit Avail- Administration (FAA), DOT. SMALL BUSINESS ADMINISTRATION able Elsewhere ...... 2.900 ACTION: Notice of petition exemption Others (Including Non-Profit Or- received. [Declaration of Disaster #3624, Amendment ganizations) With Credit Avail- #3] able Elsewhere ...... 4.875 SUMMARY: Pursuant to FAA’s rulemaking For Economic Injury: provisions governing the application, State of Alabama Businesses and Small Agricul- processing, and disposition of petitions tural Cooperatives Without for exemption, part 11 of Title 14, Code In accordance with a notice received Credit Available Elsewhere ..... 2.900 from the Department of Homeland of Federal Regulations (14 CFR), this notice contains a summary of a certain Security—Federal Emergency The number assigned to this disaster petition seeking relief from specified Management Agency—effective for physical damage is 365106 and for requirements of 14 CFR. The purpose of November 5, 2004, the above numbered economic damage is 9AJ600. declaration is hereby amended to extend this notice is to improve the public’s the deadline for filing applications for (Catalog of Federal Domestic Assistance awareness of, and participation in, this Program Nos. 59002 and 59008) physical damages as a result of this aspect of FAA’s regulatory activities. disaster to January 3, 2005. Dated: November 12, 2004. Neither publication of this notice nor All other information remains the Hector V. Barreto, the inclusion or omission of information same, i.e., the deadline for filing Administrator. in the summary is intended to affect the applications for economic injury is June [FR Doc. 04–25876 Filed 11–19–04; 8:45 am] legal status of any petition or its final 15, 2005. BILLING CODE 8025–01–P disposition. (Catalog of Federal Domestic Assistance DATES: Comments on petitions received Program Nos. 59002 and 59008) must identify the petition docket SMALL BUSINESS ADMINISTRATION Dated: November 10, 3004. number involved and must be received Herbert L. Mitchell, National Advisory Council; Public on or before December 13, 2004. Associate Administrator for Disaster Meeting ADDRESSES: Send comments on the Assistance. petition to the Docket Management [FR Doc. 04–25875 Filed 11–19–04; 8:45 am] The U.S. Small Business System, U.S. Department of BILLING CODE 8025–01–P Administration’s National Advisory Transportation, Room Plaza 401, 400 Council will be hosting a public meeting Seventh Street, SW., Washington, DC via conference call to discuss such 20590–0001. You must identify the SMALL BUSINESS ADMINISTRATION matters that may be presented by docket number FAA–2004–18657 at the members, staff of the U.S. Small beginning of your comments. If you [Declaration of Disaster #3651] Business Administration, or interested wish to receive confirmation that the others. The conference call will take State of North Carolina FAA received your comments, include a place on Monday, November 29, 2004, self-addressed, stamped postcard. Moore County and the contiguous at 11:30 a.m. eastern standard time. The You may also submit comments counties of Chatham, Cumberland, call in number is 1–866–740–1260 with through the Internet to Harnett, Hoke, Lee, Montgomery, access code 3711001. http://dms.dot.gov. You may review the Randolph, Richmond, and Scotland in Additionally, we will be using public docket containing the petition, the State of North Carolina constitute a http://www.readytalk.com to offer a live any comments received, and any final display of a PowerPoint Presentation. disposition in person in the Dockets 19 17 CFR 200.30–3(a)(12). The access code is the same: 3711001. Office between 9 a.m. and 5 p.m.,

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Monday through Friday, except Federal Federal Highway Administration—Los Road and El Sobrante west of Wood holidays. The Dockets Office (telephone Angeles Metro Office, 201 N. Figueroa Road around Lake Mathews. The 1–800–647–5527) is on the plaza level Street, Suite 1460, Los Angeles, parkway component of Alternatives 6 of the NASSIF Building at the California 90012. Telephone: (213) 202– and 7 is limited to the area east of Wood Department of Transportation at the 3954. Fax: (213) 202–3961 or Cathy Road. above address. Also, you may review Bechtel, Riverside County Alternatives under consideration public dockets on the Internet at Transportation Commission, 4080 include: (1) No Project/No Action; (2) http://dms.dot.gov. Lemon Street, 3rd Floor, P.O. Box North Lake Mathews/North Perris FOR FURTHER INFORMATION CONTACT: 12008, Riverside, CA 92502–2208. Parkway Alternative; (3) North Lake Annette K. Kovite (425–227–1262), Telephone: (951) 787–7141. Fax: (951) Transport Airplane Directorate (ANM– 787–7920. Mathews/South Perris Parkway Alternative; (4) South Lake Mathews/ 113), Federal Aviation Administration, SUPPLEMENTARY INFORMATION: The North Perris Parkway Alternative; (5) 1601 Lind Ave SW., Renton, WA proposed Mid County Parkway is 98055–4056; or John Linsenmeyer (202– located in an area of western Riverside South Lake Mathews/South Perris 267–5174), Office of Rulemaking (ARM– County that is currently undergoing Parkway Alternative; (6) General Plan/ 1), Federal Aviation Administration, substantial population and employment North Perris Alternative; (7) General 800 Independence Avenue, SW., growth. The study area is located on Plan/South Perris Alternative; and (8) Washington, DC 20591. This notice is either side of the existing roadway General Plan Circulation Element. These published pursuant to 14 CFR 11.85 and known as Cajalco Road between I–15 basic alternatives will have additional 11.91. and I–215 and as Ramona Expressway design variations and other engineering Issued in Washington, DC, on November east of I–215. The proposed action details. A final selection of study 15, 2004. would adopt an alignment for the Mid alternatives and their subset variations Anthony F. Fazio, County Parkway and construct a major will not be made until all public and Director, Office of Rulemaking. limited access transportation facility to agency comments are reviewed meet current and projected travel following the scoping process. Petitions for Exemption demand for 2030 and I–15 on the west Note: As required by the National Docket No.: FAA–2004–18657. to SR–79 on the east. The purpose of the Environmental Policy Act (NEPA) of 1969, all Petitioner: The Boeing Company. project is to effectively and efficiently other reasonable alternatives including a no- Section of 14 CFR Affected: 14 CFR accommodate the regional east-west build alternative will be considered. These 25.857(e) and 25.807(c). movement of people and goods between Description of Relief Sought: Carriage alternatives may be refined, combined with and through the cities of San Jacinto, various different alternative elements or be of 20 supernumeraries on the upper Perris and Corona. The project will also removed from further consideration as more deck of the Boeing Model 747–400 provide roadway geometries to meet analysis is conducted on the project Special Freighter (SF) airplane while State highway design standards, alternatives. Letters describing the proposed maintaining a Class E cargo accommodate the Surface action and soliciting comments will be sent compartment on the main deck. Transportation Assistance Act (STAA) to appropriate federal, State, and local [FR Doc. 04–25801 Filed 11–19–04; 8:45 am] National Network oversized trucks and agencies, and to private organizations and BILLING CODE 4910–13–U provide a facility that is compatible citizens who have previously expressed, or with a future multimodal transportation are known to have, an interest in this system. proposal. Three public scoping meetings will DEPARTMENT OF TRANSPORTATION The Mid County Parkway project is a be held in December 2004. Public notice will part of the long-term transportation be given of the time and place of these Federal Highway Administration planning project in Riverside County meetings. called the Community and Environmental Impact Statement: Environmental Transportation Public hearings will be held after the Riverside County, CA Acceptability Process (CETAP). CETAP draft EIS is completed. Public notice AGENCY: Federal Highway is a component of comprehensive land will be given of the time and place of Administration, Department of use and transportation planning in the hearings. The draft EIS will be Transportation. Riverside County known as the available for public and agency review ACTION: Notice of Intent. Riverside County Integrated Project. and comment prior to the formal public CETAP was one of the first seven hearings. SUMMARY: The Federal Highway projects in the nation to be processed To ensure that the full range of issues Administration (FHWA), in cooperation under Executive Order 13274 for related to the proposed action is with the Riverside County ‘‘Environmental Stewardship and addressed and all significant issues are Transportation Commission (RCTC) and Transportation Infrastructure Reviews’’. identified, comments and suggestions the California Department of Eight alternatives for the Mid County are invited from all interested parties. Transportation (Caltrans), is issuing this Parkway project have been developed Comments or questions concerning this notice to advise the public that an for evaluation in the EIS, including a no Environmental Impact Statement (EIS) action alternative. Many of the parkway proposed action and the EIS should be will be prepared for the proposed Mid alignment alternatives share common directed to the FHWA at the addresses County Parkway (MCP) project. The EIS segments. Generally, Alternatives 2 provided above. will study alternatives to implement the through 5 vary in terms of whether the (Catalog of Federal Domestic Assistance proposed Mid County Parkway project route is directed north or south of Lake Program Number 20.205, Highway Research, in western Riverside County between Mathews and whether the route follows Planning and Construction. The regulations Interstate 15 (I–15) to the west and State a northerly or southerly alignment implementing Executive Order 12372 Route 79 (SR 79) to the east. through the City of Perris. Alternatives regarding intergovernmental consultation on FOR FURTHER INFORMATION CONTACT: Tay 6 and 7 incorporate the General Plan Federal program and activities apply to this Dam, Senior Transportation Engineer, arterial designations for both Cajalco program)

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Issued on November 16, 2004. Type of Review: Extension of a SUMMARY: The Department of the Mr. John E. Dewar, currently approved collection. Treasury, as part of its continuing effort Chief Operating Officer, California Division, Affected Public: Individuals or to reduce paperwork and respondent Federal Highway Administration. households. burden, invites the general public and [FR Doc. 04–25805 Filed 11–19–04; 8:45 am] Estimated Number of Respondents: other Federal agencies to take this BILLING CODE 4910–22–M 375,000. opportunity to comment on proposed Estimated Time per Respondent: 1 hr. and/or continuing information Estimated Total Annual Hours: collections, as required by the DEPARTMENT OF THE TREASURY 477,563. Paperwork Reduction Act of 1995, Pub. The following paragraph applies to all L. 104–13 (44 U.S.C. 3506(c)(2)(A)). Internal Revenue Service of the collections of information covered Currently, the IRS is soliciting by this notice. comments concerning an existing final [REG–118662–98] An agency may not conduct or regulation, REG–106902–98 (TD 8833), sponsor, and a person is not required to Consolidated Returns-Consolidated Proposed Collection: Comment respond to, a collection of information Overall Foreign Losses and Separate Request for Regulation Project unless the collection of information Limitation Losses (§ 1.1502–9(c)(2)(iv)). AGENCY: Internal Revenue Service (IRS), displays a valid OMB control number. DATES: Written comments should be Treasury. Books or records relating to a collection received on or before January 21, 2005 of information must be retained as long ACTION: Notice and request for to be assured of consideration. as their contents may become material comments. ADDRESSES: Direct all written comments in the administration of any internal to Joseph Durbala, Internal Revenue SUMMARY: The department of the revenue law. Generally, tax returns and Service, room 6512, 1111 Constitution Treasury, as part of its continuing effort tax return information are confidential, Avenue NW., Washington, DC 20224. as required by 26 U.S.C. 6103. to reduce paperwork and respondent FOR FURTHER INFORMATION CONTACT: burden, invites the general public and Request for Comments: Comments Requests for additional information or other Federal agencies to take this submitted in response to this notice will copies of the regulations should be opportunity to comment on proposed be summarized and/or included in the directed to Larnice Mack at Internal and/or continuing information request for OMB approval. All Revenue Service, room 6512, 1111 collections, as required by the comments will become a matter of Constitution Avenue NW., Washington, Paperwork Reduction Act of 1995, Pub. public record. Comments are invited on: DC 20224, or at (202) 622–3179, or L. 104–13 (44 U.S.C. 3506(c)(2)(A)). (a) Whether the collection of through the Internet at Currently, the IRS is soliciting information is necessary for the proper ([email protected]). comments concerning an existing final performance of the functions of the SUPPLEMENTARY INFORMATION: regulation. REG–118662–98 (TD 8873), agency, including whether the Title: Consolidated Returns- New Technologies in Retirement Plans. information shall have practical utility; Consolidated Overall Foreign Losses DATES: Written comments should be (b) the accuracy of the agency’s estimate of the burden of the collection of and Separate Limitation Losses. received on or before January 21, 2005 OMB Number: 1545–1634. Regulation to be assured of consideration. information; (c) ways to enhance the quality, utility, and clarity of the Project Number: REG–106902–98. ADDRESSES: Direct all written comments information to be collected; (d) ways to Abstract: The regulation provides to Joe Durbala, Internal Revenue minimize the burden of the collection of guidance relating to the amount of Service, room 6516, 1111 Constitution information on respondents, including overall foreign losses and separate Avenue NW., Washington, DC 20224. through the use of automated collection limitation losses in the computation of FOR FURTHER INFORMATION CONTACT: techniques or other forms of information the foreign tax credit. The regulations Requests for additional information or technology; and (e) estimates of capital affect consolidated groups of copies of the for and instructions should or start-up costs and costs of operation, corporations that compute the foreign be directed to Allan Hopkins, at (202) maintenance, and purchase of services tax credit limitation or that dispose of 622–6665, or at Internal Revenue to provide information. property used in a foreign trade or Service, room 6516, 1111 Constitution business. Approved: November 15, 2004. Avenue NW., Washington, DC 20224, or Current Actions: There is no change to through the Internet, at Joe Durbala, this existing regulation. [email protected]. IRS Reports Clearance Officer. Type of Review: Extension of a [FR Doc. 04–25873 Filed 11–19–04; 8:45 am] currently approved collection. SUPPLEMENTARY INFORMATION: BILLING CODE 4830–01–P Affected Public: Business or other for- Title: New Technologies in profit organizations. Retirement Plans. Estimated Number of Respondents: OMB Number: 1545–1632. DEPARTMENT OF THE TREASURY 2,000. Regulation Project Number: REG– Estimated Average Time per 118662–98. Internal Revenue Service Respondent: 1hr., 30 min. Abstract: These regulations provide Estimated Total Annual Burden that certain notices and consents require [REG–106902–98] Hours: 3,000. in connection with distributions from The following paragraph applies to all retirement plans may be transmitted Proposed Collection; Comment of the collections of information covered through electronic media. The Request for Regulation Project by this notice: regulations also modify the timing AGENCY: Internal Revenue Service (IRS), An agency may not conduct or requirements for provision of certain Treasury. sponsor, and a person is not required to distribution-related notices. respond to, a collection of information ACTION: Notice and request for Current Actions: There is no change to unless the collection of information comments. this existing regulation. displays a valid OMB control number.

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Books or records relating to a collection public record. Comments are invited on: information on respondents, including of information must be retained as long (a) Whether the collection of through the use of automated collection as their contents may become material information is necessary for the proper techniques or other forms of information in the administration of any internal performance of the functions of the technology; and (e) estimates of capital revenue law. Generally, tax returns and agency, including whether the or start-up costs and costs of operation, tax return information are confidential, information shall have practical utility; maintenance, and purchase of services as required by 26 U.S.C. 6103. (b) the accuracy of the agency’s estimate to provide information. Request for Comments: Comments of the burden of the collection of Approved: November 15, 2004. submitted in response to this notice will information; (c) ways to enhance the Joseph Durbala, be summarized and/or included in the quality, utility, and clarity of the IRS Reports Clearance Officer. request for OMB approval. All information to be collected; (d) ways to [FR Doc. 04–25874 Filed 11–19–04; 8:45 am] comments will become a matter of minimize the burden of the collection of BILLING CODE 4810–01–P

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Corrections Federal Register Vol. 69, No. 224

Monday, November 22, 2004

This section of the FEDERAL REGISTER NUCLEAR REGULATORY Tuesday, October 26, 2004, make the contains editorial corrections of previously COMMISSION following correction: published Presidential, Rule, Proposed Rule, On page 62486, in the table, in the and Notice documents. These corrections are [NUREG–1600] first column, in the ninth line, ‘‘3.7 x prepared by the Office of the Federal 10 ’’ should read ‘‘3.7 x 104.’’ Register. Agency prepared corrections are Revision of the NRC Enforcement 4 issued as signed documents and appear in Policy [FR Doc. C4–23900 Filed 11–19–04; 8:45 am] the appropriate document categories BILLING CODE 1505–01–D elsewhere in the issue. Correction In notice document 04–23900 beginning on page 62485 in the issue of

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Part II

Nuclear Regulatory Commission 10 CFR Part 50 Risk-Informed Categorization and Treatment of Structures, Systems and Components for Nuclear Power Reactors; Final Rule

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NUCLEAR REGULATORY XI. Finding of No Significant Environmental requirements.’’ These requirements COMMISSION Impact were developed to provide greater XII. Paperwork Reduction Act Statement assurance that these SSCs would 10 CFR Part 50 XIII. Regulatory Analysis perform their functions under particular XIV. Regulatory Flexibility Act Certification conditions (e.g., seismic events or harsh RIN 3150–AG42 XV. Backfit Analysis XVI. Small Business Regulatory Enforcement environments), with high quality and Risk-Informed Categorization and Fairness Act reliability, for as long as they are part of Treatment of Structures, Systems and the plant. These include particular Components for Nuclear Power I. Background examination techniques, testing strategies, documentation requirements, Reactors I.1 History and General Background personnel qualification requirements, AGENCY: Nuclear Regulatory The NRC has established a set of independent oversight, etc. In many Commission. regulatory requirements for commercial instances, these ‘‘special treatment’’ nuclear reactors to ensure that a reactor ACTION: Final rule. requirements were developed as a facility does not impose an undue risk means to gain assurance when more SUMMARY: The Nuclear Regulatory to the health and safety of the public, direct measures (e.g., testing under Commission (NRC) is amending its thereby providing reasonable assurance design basis conditions or routine regulations to provide an alternative of adequate protection to public health operation) could not show that SSCs approach for establishing the and safety. The current body of NRC were functionally capable. requirements for treatment of structures, regulations and their implementation Special treatment requirements are systems and components (SSCs) for are largely based on a ‘‘deterministic’’ imposed on nuclear reactor applicants nuclear power reactors using a risk- approach. and licensees through numerous informed method of categorizing SSCs This deterministic approach regulations that have been issued since according to their safety significance. establishes requirements for engineering the 1960’s. These requirements specify The amendment revises requirements margin and quality assurance in design, different scopes of equipment for with respect to ‘‘special treatment,’’ that manufacture, and construction. In different special treatment requirements is, those requirements that provide addition, it assumes that adverse depending on the specific regulatory increased assurance (beyond normal conditions can exist (e.g., equipment concern, but are derived from industrial practices) that SSCs perform failures and human errors) and consideration of the deterministic DBEs. their design basis functions. This establishes a specific set of design basis Treatment for an SSC, as a general amendment permits licensees (and events (DBEs). The deterministic term and as it will be used in this applicants for licenses) to remove SSCs approach contains implied elements of rulemaking, refers to activities, of low safety significance from the scope probability (qualitative risk processes, and/or controls that are of certain identified special treatment considerations), from the selection of performed or used in the design, accidents to be analyzed (e.g., reactor requirements and revise requirements installation, maintenance, and operation vessel rupture is considered too for SSCs of greater safety significance. In of SSCs as a means of: improbable to be included) to the addition to the rulemaking and its (1) Specifying and procuring SSCs system level requirements for associated analyses, the Commission is that satisfy performance requirements; emergency core cooling (e.g., safety train also issuing a regulatory guide (RG) to (2) Verifying over time that redundancy and protection against implement the rule. performance is maintained; single failure). The deterministic (3) Controlling activities that could EFFECTIVE DATE: December 22, 2004. approach then requires that the licensed impact performance; and ADDRESSES: The final rule and related facility include safety systems capable (4) Providing assessment and documents are available on NRC’s of preventing and/or mitigating the feedback of results to adjust activities as rulemaking Web site at http:// consequences of those DBEs to protect needed to meet desired outcomes. ruleforum.llnl.gov. For information public health and safety. Those SSCs Treatment includes, but is not limited about the interactive rulemaking Web necessary to defend against the DBEs are to, quality assurance, testing, site contact Ms. Carol Gallagher, (301) defined as ‘‘safety-related,’’ and these inspection, condition monitoring, 415–5905 (e-mail: [email protected]). SSCs are the subject of many regulatory assessment, evaluation, and resolution FOR FURTHER INFORMATION CONTACT: Mr. requirements designed to ensure that of deviations. The distinction between Timothy Reed, Office of Nuclear Reactor they are of high quality and high ‘‘treatment’’ and ‘‘special treatment’’ is Regulation, U.S. Nuclear Regulatory reliability, and have the capability to the degree of NRC specification as to Commission, Washington DC 20555– perform during postulated design basis what must be implemented for 0001; telephone (301) 415–1462; e-mail: conditions. Typically, the regulations particular SSCs or for particular [email protected]. establish the scope of SSCs that receive conditions. Defense-in-depth is an element of the SUPPLEMENTARY INFORMATION: special treatment using one of three different terms: ‘‘safety-related,’’ NRC’s safety philosophy that employs Table of Contents ‘‘important to safety,’’ or ‘‘basic successive measures to prevent I. Background component.’’ The terms ‘‘safety-related accidents or mitigate damage if a II. Comments on Proposed Rule ‘‘and ‘‘basic component’’ are defined in malfunction, accident, or naturally III. Final Rule the regulations, while ‘‘important to caused event occurs at a nuclear facility. IV. Pilot Activities safety,’’ used principally in the general Defense-in-depth is a philosophy used V. Section by Section Analysis design criteria (GDC) of Appendix A to by the NRC to provide redundancy as VI. Guidance well as the philosophy of a multiple- VII. Criminal Penalties 10 CFR part 50, is not explicitly defined. VIII. Compatibility of Agreement State These prescriptive requirements as to barrier approach against fission product Regulations how licensees are to treat SSCs, releases. The defense-in-depth IX. Availability of Documents especially those that are defined as philosophy ensures that safety will not X. Voluntary Consensus Standards (Public ‘‘safety-related,’’ are referred to in the be wholly dependent on any single Law 104–113) rulemaking as ‘‘special treatment element of the design, construction,

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maintenance, or operation of a nuclear individual performance of each defense (5) The independence of barriers is facility. The net effect of incorporating system in relation to overall not degraded; and, defense-in-depth into design, performance. (6) Defenses against human errors are construction, maintenance, and The Commission published a Policy preserved. operation is that the facility or system Statement on the ‘‘Use of Probabilistic I.2 Rule Initiation in question tends to be more tolerant of Risk Assessment’’ on August 16, 1995 failures and external challenges. (60 FR 42622). In the policy statement, In addition to RG 1.174, the NRC also A probabilistic approach to regulation the Commission stated that the use of issued other regulatory guides on risk- enhances and extends the traditional PRA technology should be increased in informed approaches for specific types deterministic approach by allowing all regulatory matters to the extent of applications. These included RG consideration of a broader set of supported by the state of the art in PRA 1.175, Risk-informed Inservice Testing, potential challenges to safety, providing methods and data, and in a manner that RG 1.176, Graded Quality Assurance, a logical means for prioritizing these supports the NRC’s traditional defense- RG 1.177, Risk-informed Technical challenges based on safety significance, in-depth philosophy. The policy Specifications, and RG 1.178, Risk- and allowing consideration of a broader statement also stated that, in making informed Inservice Inspection. In this set of resources to defend against these regulatory judgments, the Commission’s respect, the Commission has been challenges. Until the accident at Three safety goals for nuclear power reactors successful in developing and Mile Island (TMI), the NRC only used and subsidiary numerical objectives (on implementing a regulatory means for probabilistic criteria in specialized core damage frequency and containment considering risk insights into the current regulatory framework. One such areas, such as for certain man-made performance) should be used with risk-informed application, the South hazards and for natural hazards (with appropriate consideration of Texas Project (STP) submittal on graded respect to initiating event frequency). uncertainties. quality assurance, is particularly The major investigations of the TMI To implement this Commission noteworthy. accident recommended that policy, the NRC staff developed probabilistic risk assessment (PRA) In March 1996, STP Nuclear guidance on the use of risk information Operating Company (STPNOC) techniques be used more widely to for reactor license amendments and augment traditional non-probabilistic requested that the NRC approve a issued Regulatory Guide (RG) 1.174, revised Operations Quality Assurance methods of analyzing plant safety. ‘‘An Approach for Using Probabilistic In contrast to the deterministic Program (OQAP) that incorporated the Risk Assessment in Risk-Informed approach, PRAs address credible methodology for grading quality Decisions on Plant-Specific Changes to initiating events by assessing the event assurance (QA) based on PRA insights. the Licensing Basis.’’ This RG provided frequency. Mitigating system reliability The STP graded QA proposal was an guidance on an acceptable approach to is then assessed, including the potential extension of the existing regulatory risk-informed decision-making for common cause failures. The framework. Specifically, the STP consistent with the Commission’s probabilistic treatment goes beyond the approach continued to use the policy, including a set of key principles. single failure requirements used in the traditional safety-related categorization, These principles include: deterministic approach. The but allowed for gradation of safety probabilistic approach to regulation is (1) Be consistent with the defense-in- significance within the ‘‘safety-related’’ therefore considered an extension and depth philosophy; categorization (consistent with 10 CFR enhancement of traditional regulation (2) Maintain sufficient safety margins; part 50 appendix B) through use of a by considering risk in a more coherent (3) Any changes allowed must result risk-informed process. Following and complete manner. in only a small increase in core damage extensive discussions with the licensee The primary need for improving the frequency or risk, consistent with the and substantial review, the NRC staff implementation of defense-in-depth in a intent of the Commission’s Safety Goal approved the proposed revision to the risk-informed regulatory system is Policy Statement; and, OQAP on November 6, 1997. guidance to determine how many (4) Incorporate monitoring and Subsequent to NRC’s approval, STPNOC measures are appropriate and how good performance measurement strategies. identified implementation difficulties these should be. Instead of merely RG 1.174 states that consistency with associated with the graded QA program. relying on bottom-line risk estimates, the defense-in-depth philosophy will be Despite the reduced QA requirement defense-in-depth is invoked as a strategy preserved by ensuring that: applied for a large number of SSCs in to ensure public safety given there exists (1) A reasonable balance is preserved which the licensee judged to be of low both unquantified and unquantifiable among prevention of accidents, safety significance, other regulatory uncertainty in engineering analyses prevention of barrier failure, and requirements such as environmental (both deterministic and risk mitigation of consequences; qualification, the American Society of assessments). (2) An over-reliance on programmatic Mechanical Engineers (ASME) Boiler Risk insights can make the elements activities to compensate for weaknesses and Pressure Vessel Code (BPV), or of defense-in-depth clearer by in equipment or device design is seismic requirements, continued to quantifying them to the extent avoided; impose substantial burdens. As a result, practicable. Although the uncertainties (3) System redundancy, the replacement of a low safety associated with the importance of some independence, and diversity are significant component needed to satisfy elements of defense may be substantial, preserved commensurate with the other special requirements during a the fact that these elements and expected frequency, consequences of procurement process. These uncertainties have been quantified can challenges to the system, and requirements prevented STPNOC from aid in determining how much defense is uncertainties (e.g., no risk outliers); realizing the full potential reduction in appropriate from a regulatory (4) Defenses against potential unnecessary regulatory burden for SSCs perspective. Decisions on the adequacy common cause failures are preserved, judged to have little or no safety of, or the necessity for, elements of and the potential for the introduction of importance. In an effort to achieve the defense should reflect risk insights new common cause failure mechanisms full benefit of the graded QA program gained through identification of the is assessed; (and in fact to go beyond the staff’s

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previous approval of graded QA), performance and the performance 2003. The proposed 10 CFR 50.69 rule STPNOC submitted a request, dated July credited in the assessment process that was published for public comment in 13, 1999, asking for an exemption from determines their significance. As a the Federal Register on May 16, 2003 the scope of numerous special treatment result, both the NRC and industry (68 FR 26511). The Commission regulations (including 10 CFR part 50 should be able to better focus their received 26 sets of comments in appendix B) for SSCs categorized as low resources on regulatory issues of greater response to the proposed rule. The safety significant or as non-risk safety significance. comments are discussed in Section II significant. STPNOC’s exemption was The Commission directed the NRC below. ultimately approved by the staff in staff to evaluate strategies to make the The NRC staff provided the August 2001 (further discussion on this scope of the nuclear power reactor Commission the draft final rule in exemption request is provided in regulations that impose special SECY–04–0109 dated June 30, 2004. Section IV.2). treatment risk-informed. SECY–99–256, The Commission subsequently The experience with graded QA was ‘‘Rulemaking Plan for Risk-Informing approved the final rule subject to the a principal factor in the NRC’s Special Treatment Requirements,’’ dated changes denoted during the session and determination that rule changes would October 29, 1999, was sent to the documented in SRM dated October 7, be necessary to proceed with some Commission to obtain approval for a 2004 (ADAMS accession number activities to risk-inform requirements. rulemaking plan and issuance of an ML042810516). The Commission also believes that the Advance Notice of Proposed I.3 Rule Overview development of PRA technology and Rulemaking (ANPR). By SRM dated decision-making tools for using risk January 31, 2000, the Commission Section 50.69 represents an information together with deterministic approved publication of the ANPR and alternative set of requirements whereby information supported rulemaking approved the rulemaking plan. The a licensee or applicant may voluntarily activities to allow the NRC to refocus ANPR was published in the Federal undertake categorization of its SSCs certain regulatory requirements using Register on March 3, 2000 (65 FR consistent with the requirements in this type of information. 11488), for a 75-day comment period, § 50.69(c), remove the special treatment Under Option 2 of SECY–98–300, which ended on May 17, 2000. In the requirements listed in § 50.69(b) for ‘‘Options for Risk-Informed Revisions to rulemaking plan, the NRC proposed to SSCs that are determined to be of low 10 CFR part 50—‘Domestic Licensing of create a new section within part 50, now individual safety significance, and Production and Utilization Facilities,’’’ identified as § 50.69, to contain these implement alternative treatment dated December 23, 1998, the NRC staff alternative requirements. requirements in § 50.69(d). The recommended that risk-informed The Commission received more than regulatory requirements not removed by approaches to the application of special 200 comments in response to the ANPR. § 50.69(b) continue to apply as well as treatment requirements be developed as The NRC staff sent the Commission the requirements specified in § 50.69. one application of risk-informed SECY–00–0194, ‘‘Risk-Informing The rule contains requirements by regulatory changes. Option 2 (also Special Treatment Requirements,’’ dated which a licensee categorizes SSCs using referred to as RIP50 Option 2) addresses September 7, 2000, which provided the a risk-informed process, adjusts the implementation of changes to the staff’s preliminary views on the ANPR treatment requirements consistent with scope of SSCs needing special treatment comments and additional thoughts on the relative significance of the SSC, and while still providing assurance that the the preliminary regulatory framework manages the process over the lifetime of SSCs will perform their design for implementing a rule to revise the the plant. To implement these functions. Changes to the requirements scope of special treatment requirements requirements, a risk-informed pertaining to the design basis functional for SSCs. The comments from the ANPR categorization process is employed to requirements of the plant or the design are further discussed in Section IV.1.0 determine the safety significance of basis accidents are not included in of SECY–02–0176, ‘‘Proposed SSCs and place the SSCs into one of Option 2. These technical risk-informed Rulemaking to Add New Section 10 CFR four risk-informed safety class (RISC) changes are addressed under Option 3 50.69, ‘‘Risk-Informed Categorization categories. The determination of safety of SECY–98–300. The Commission and Treatment of Structures, Systems, significance is performed by an approved proceeding with Option 2 in and Components,’’ dated September 30, integrated decision-making process a staff requirements memorandum 2002 (ADAMS accession number which uses both risk insights and (SRM) dated June 8, 1999. ML022630007). traditional engineering insights. The The stated purpose of the ‘‘Option 2’’ The concept developed for this rule, safety functions include both the design rulemaking was to develop an discussed at length in the ANPR, basis functions (derived from the alternative regulatory framework that applies treatment requirements based ‘‘safety-related’’ definition, which enables licensees, using a risk-informed upon the safety significance of SSCs, includes external events), as well as, process for categorizing SSCs according determined through consideration of functions credited for severe accidents to their safety significance (i.e., a both risk insights and deterministic (including external events). Treatment decision that considers both traditional information. Thus, the risk-informed for the SSCs is required to be applied as deterministic insights and risk insights), approach discussed in this rule for necessary to maintain functionality and to reduce unnecessary regulatory establishing an alternative scope of reliability, and is a function of the burden for SSCs of low safety SSCs subject to special treatment category into which the SSC is significance by removing these SSCs requirements uses both risk and categorized. Finally, assessment from the scope of special treatment traditional deterministic methods in a activities are conducted to make requirements. As part of this process, blended ‘‘risk-informed’’ approach. adjustments to the categorization and those SSCs found to be of risk- The NRC staff prepared a proposed treatment processes as needed so that significance would be brought under a rule package and provided it to the SSCs continue to meet applicable greater degree of regulatory control Commission in SECY–02–0176. The requirements. The rule contains through the requirements being added Commission approved issuance of requirements for obtaining prior NRC to the rule, which are designed to proposed 10 CFR 50.69 for public review and approval of the maintain consistency between actual comment in a SRM dated March 28, categorization process and for

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maintaining certain plant records and capability and, as a consequence, gain more benefit when PRA methods reports. For a more detailed discussion constructed proposed § 50.69 to contain are used (beyond the minimum PRA of the rule requirements refer to high-level (i.e., less detailed) RISC–3 requirements in § 50.69(c)), and where Sections III and V of this rule. treatment requirements. However, the non-PRA methods are used, the It is important to note that this Commission recognized that some requirements and associated rulemaking effort, while intended to stakeholders could disagree with this implementation guidance account for ensure that the scope of special approach and invited comment on this this situation by requiring a process that treatment requirements imposed on issue. For the most part, industry tends to conservatively categorize SSCs SSCs is risk-informed, is not intended to commenters asserted that there was no into RISC–1 and RISC–2 (i.e., no special allow for the elimination of SSC need for more detailed treatment treatment requirements are removed). functional requirements or to allow requirements for RISC–3 SSCs in the There are several other features to the equipment that is required by the rule. The state commenters and public regulatory framework that also deterministic design basis to be interest groups considered the proposed contribute to ensuring sound PRA is removed from the facility (i.e., changes rule language to be inadequate to used such as requiring aspects of the to the design of the facility must provide reasonable confidence in the categorization process to be reviewed continue to meet the current capability of RISC–3 SSCs to perform and approved before implementation, requirements governing design change; their safety-related functions under requiring the PRA to be peer reviewed, most notably § 50.59). Instead, this design basis conditions. In reviewing Integrated Decision-Making Panel (IDP) rulemaking should enable licensees and the public comments, the Commission requirements, provisions for addressing the staff to focus their resources on SSCs found significant divergence in the all modes and events regardless of that make a significant contribution to interpretation of the proposed rule whether in the PRA, feedback and plant safety by restructuring the language by industry commenters from update requirements, and supporting regulations to allow an alternative risk- the Commission’s expectations as standards. (Also see the Commission’s informed approach to special treatment. described in the Statement of SRM on PRA quality dated December Conversely, for SSCs that do not Considerations—preamble—(SOC) for 18, 2003, ADAMS Accession No. significantly contribute to plant safety the proposed rule. After consideration ML033520457.) on an individual basis, this approach of all stakeholder comments, the II.1.3 Review and Approval of RISC–3 should allow an acceptable, though Commission revised § 50.69(d)(2) to Treatment reduced, level of confidence (i.e., adopt a more performance-based ‘‘reasonable confidence’’) that these approach that provides licensees and The Commission requested SSCs will satisfy functional applicants greater flexibility in stakeholder comment on whether the requirements. However, continued establishing RISC–3 treatment NRC should review and approve the maintenance of the health and safety of consistent with the low safety RISC–3 treatment processes being the public will depend on effective significance of RISC–3 SSCs. developed by the licensee or applicant implementation of § 50.69 by the Accordingly, the Commission has before implementation in addition to licensee or applicant applying the rule removed the more prescriptive reviewing the categorization process. at its nuclear power plant. requirements regarding RISC–3 Public interest groups and comments treatment activities and adopted rule from state organizations generally II. Public Comments language that focuses on the stressed the need for the NRC to review II.1.0 Comments on Proposed Rule performance requirements for RISC–3 and approve RISC–3 treatment SSCs. The Commission published proposed processes in advance of implementation § 50.69 for public comment on May 16, II.1.2 PRA Requirements to confirm appropriate treatment will be 2003 (68 FR 26511). Twenty-six sets of The Commission requested applied to RISC–3 SSCs given that these comments were received (comments are stakeholder comment on whether the SSCs are safety-related. On the other available at http://ruleforum.llnl.gov/ NRC should amend the requirements in hand, industry commenters did not cgi-bin/rulemake?source=SSC_ § 50.69(c) to require a level 2 internal consider prior review and approval of PRULE&st=prule). The Commission and external initiating events, all-mode, RISC–3 treatment to be necessary in requested feedback on several specific peer-reviewed PRA that must be light of the low safety significance of issues in Section VI of the proposed rule submitted to, and reviewed by, the NRC. individual RISC–3 SSCs, other notice. A summary of the public Stakeholder comments ranged from requirements that help maintain safety, feedback concerning these issues, as those supporting such PRA and the availability of inspection and well as a discussion of the more requirements to those who conclude enforcement by the NRC. The NRC significant comments, follows. A that the proposed PRA requirements in agrees that the individual low safety detailed discussion of the issues raised § 50.69(c) are sufficient. The industry significance of RISC–3 SSCs supports by all comments is contained in a commenters stated that additional PRA allowing licensees to establish treatment separate document (see Section IX, requirements were not necessary for RISC–3 SSCs without prior NRC Availability of Documents). because the other categorization review. This conclusion is based on the requirements in § 50.69(c) addressed rule containing: II.1.1 Consideration of More Detailed other modes and events not addressed (1) Robust categorization and PRA Language for § 50.69(d)(2) Regarding by the PRA and as a result, all sources requirements; RISC–3 SSC Treatment Requirements of risk were addressed. The states and (2) Requirements to show that As discussed in the proposed rule, the public interest groups supported implementation risk is small; Commission believed that detailed rule increased PRA requirements. The (3) Feedback requirements of language for the treatment of RISC–3 Commission concludes that the § 50.69 paragraph (e) to help maintain the SSCs (i.e., safety-related SSCs that are PRA requirements in the proposed rule validity of the categorization process; categorized as low safety significant) are sufficient for this application. The and was not necessary to provide reasonable supporting guidance for the rule has (4) The high-level, performance-based confidence in RISC–3 design basis been structured such that licensees will RISC–3 requirements designed to

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maintain RISC–3 SSC design basis II.1.5 Operating Experience II.1.6.1 SOC Guidance functional capability. The Commission requested Numerous comments were received In addition, a provision has been stakeholder feedback regarding the role from the industry regarding the nature added to the final rule to make it clear that relevant operational experience of the information in the proposed rule’s that the treatment applied to RISC–3 could play in reducing the uncertainty SOC supporting both § 50.69(d)(2) and SSCs must be consistent with (i.e., associated with the effects of treatment § 50.69(c). Several industry commenters maintain the validity of) the on performance and specifically sought stated that the discussion in the SOC categorization process. To provide public comment as to what information was inconsistent with the rule additional assurance, the NRC intends might be available and how it could be requirements. For example, some commenters suggested that, contrary to to conduct sample inspections at used to support implementation of this the SOC discussion, the treatment nuclear power plants implementing rulemaking. Some stakeholders requirements for RISC–3 SSCs in § 50.69 to address programmatic issues commented that relevant operating § 50.69(d)(2) would allow exercising of related to the categorization and experience argues against the removal of pumps and valves as a means of treatment processes (see below). special treatment requirements and that providing reasonable confidence in the regulatory attention should be increased II.1.4 Inspection and Enforcement design basis capability of those for this equipment. Other stakeholders components. Another commenter The Commission requested suggested that there is a large amount of claimed that, contrary to the SOC stakeholder comment on whether or not data that demonstrates that commercial discussion, § 50.69 would allow the changes are needed in the NRC’s reactor and safety-related SSCs have oversight process including the leakage tests required by 10 CFR part 50, comparable failure rates with the Appendix J, for containment isolation inspection program and enforcement to implication that special treatment enable NRC to exercise the appropriate valves to be eliminated without requirements can be removed with little considering the capability of those degree of regulatory oversight of these impact. The specific study referenced by valves to close under design basis aspects of facility operation regarding those stakeholders was not submitted conditions. Other commenters asserted § 50.69. The public comments on the for formal NRC review. The Commission that the corrective action process alone proposed rule indicated general support concludes that a single unreviewed would be sufficient to satisfy the high- for providing regulatory oversight of the study does not provide a sufficient basis level requirements for feedback and implementation of processes established to make broad conclusions regarding the monitoring of RISC–3 SSCs in § 50.69. under § 50.69 through the NRC’s performance of SSCs subject to These industry comments raised inspection and enforcement process. commercial and industrial practices for concerns regarding the interpretation of Some stakeholders considered the fabrication, installation, and the rule language. The Commission current inspection and enforcement maintenance. Other stakeholders clarified the rule requirements and process to be sufficient without commented that there are already simplified the SOC to focus on the adjustment. Other stakeholders opportunities for industry to share meaning of the rule language (see recommended that the NRC consider experience data with existing industry Sections II.1.6.2 through II.1.6.3, Section additional training and guidance to and regulatory programs implying that a V.5.2, and the responses to comments inspectors to support implementation of new program is not necessary. In some d–32 and e–4 in Table 3 of ‘‘Response § 50.69. Some stakeholders provided instances, however, those referenced to Comments on Proposed § 50.69’’ as specific and constructive suggestions programs will be eliminated for RISC– referenced in Section IX of this regarding the inspection and 3 SSCs under § 50.69. To emphasize the document). enforcement process under § 50.69 importance of applying operating including aspects of treatment processes experience in maintaining plant safety, II.1.6.2 RISC–3 Treatment to be inspected, and the application of the final rule has been revised to clarify Requirements enforcement discretion. Based on its that § 50.69(e)(1) requires the feedback Numerous stakeholder comments consideration of this issue, the of plant operational experience in were received concerning the Commission plans to conduct addition to the requirements to feed § 50.69(d)(2) requirements for RISC–3 inspections of § 50.69 implementation. back performance data, plant changes, SSCs. Some public stakeholders These inspections will be performed on operational changes, and industry provided their view that the RISC–3 a sampling basis (in terms of the number experience. This plant operational treatment requirements were inadequate of plants inspected) and will depend on information may be obtained from the in light of previous industry experience the number of licensees who decide to corrective action program and (e.g., regarding the use of substandard implement § 50.69. These sample processes, as well as other sources. parts) and that more detailed RISC–3 inspections are intended to gather II.1.6 Other Substantive Issues requirements were needed to address information that will enable the NRC to common cause failures, significant assess whether modifications are In addition to the issues addressed in degradation, and in general to avoid an needed to the ongoing baseline Section II.1.5, stakeholders provided increase in risk to the health and safety inspection program. The principal focus substantive comments that caused the of the public. Industry stakeholders of the inspection will be on the safety NRC to re-examine the § 50.69 tended to view the RISC–3 requirements significant aspects of § 50.69 framework and make changes. Those as too prescriptive and beyond what is implementation such as categorization issues and comments are discussed necessary to maintain reasonable and treatment of RISC–1 and RISC–2 below. Additionally, there were several confidence of RISC–3 SSC design basis SSCs, but the inspection will also issues that involved a significant capability. Some of the industry consider the implementation of RISC–3 number of stakeholder comments, and comments revealed that the rule treatment focusing on programmatic and even though the Commission decided requirements might not be implemented common cause issues, which could not to revise its approach, those issues consistent with the Commission’s undermine the categorization process and comments are also discussed in this expectations discussed in the SOC. and its results. section. Therefore, the Commission clarified the

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rule and SOC as discussed in the II.1.6.2.3 Voluntary Consensus consensus standards. However, following sections. Standards licensees or applicants must recognize that the application of such standards II.1.6.2.1 Fracture Toughness In the SOC for the proposed rule, the Commission discussed the use of must meet § 50.69(d)(2) requirements to In the SOC for the proposed rule, the voluntary consensus standards as one be acceptable. The determination of Commission noted that design effective means to establish treatment consistency between treatment and categorization also includes requirements for fracture toughness requirements for RISC–3 SSCs. In its consideration of applicable operational would continue to apply for comments, the ASME did not recommend adding a provision on experience, which may be found from replacement ASME components such sources as NRC information categorized as RISC–3 SSCs. One voluntary consensus standards in the rule itself because it considered the SOC notices, bulletins, and generic letters; industry commenter asserted that and vendor recommendations. fracture toughness is not a design issue to provide adequate guidance for RISC– while other commenters argued in 3 treatment. However, several industry II.1.6.2.4 Design Control Process commenters suggested that licensees general that the SOC discussion In the SOC for the proposed rule, the might only apply general industrial exceeded the rule requirements. The Commission listed several attributes to practices when implementing treatment be considered as part of the design Commission emphasizes that the intent requirements for RISC–3 SSCs. For control process for RISC–3 SSCs in of § 50.69 is to remove special treatment example, some industry commenters requirements while maintaining design satisfying the high-level treatment believed that exercising a pump or valve requirements in § 50.69. One industry requirements for RISC–3 SSCs. The would provide sufficient assurance Commission considers fracture commenter suggested that a focused list under § 50.69 of the capability of the of design control attributes be toughness to be an important design pump or valve to perform its design consideration. Fracture toughness is a substituted in § 50.69 for the proposed basis safety functions. Although rule language. This list would include property of the material that prevents exercising a pump or valve might be selection of suitable materials; premature failure of an SSC at abrupt consistent with general industrial verification of design adequacy, and geometry changes, or at small practices, operating experience has control of design changes. After undetected flaws. Adequate fracture demonstrated that exercising a pump or consideration of these comments, the toughness of SSCs is necessary to valve is not sufficient to ensure with Commission has decided not to include prevent common cause failures due to reasonable confidence its design basis detailed design control process design basis events, such as capability. For example, the requirements in the final rule. The final earthquakes. To ensure that this design Commission modified § 50.55a to rule requirements require that licensees consideration continues to be applicable require licensees implementing the and applicants ensure with reasonable to § 50.69 licensees, § 50.69(b)(1)(v) was ASME Code for Operation and confidence that RISC–3 SSCs remain clarified to exclude fracture toughness Maintenance of Nuclear Power Plants to capable of performing their safety- from the scope of § 50.55a repair and periodically verify the design basis related functions under design basis replacement requirements which are capability of motor-operated valves to conditions. With respect to design removed for RISC–3 SSCs. perform their safety functions in light of changes, as noted in several places in the recognized inadequacies in stroke- the notice for the final rule, § 50.69 is II.1.6.2.2 Consistency With the time testing (somewhat more not changing design basis functional Categorization Process informative than exercising) to assess requirements and § 50.59 remains the operational readiness of those applicable to all changes to non-special Several industry comments indicated valves. The NRC issued Regulatory Issue treatment aspects of RISC–3 SSCs. The that licensees might not consider the Summary 00–03 (March 15, 2000), Commission believes that a impact of changes in treatment on ‘‘Resolution of Generic Safety Issue 158, performance-based requirement will RISC–3 SSCs as part of the Performance of Safety-Related Power- allow licensees who choose to categorization process. For example, one Operated Valves Under Design Basis implement § 50.69 to have greater industry commenter asserted that Conditions,’’ to discuss the importance flexibility to implement treatment that sensitivity studies eliminate the need to of this issue relative to safety-related air- they have determined is needed, specifically consider SSC reliability operated and other power-operated commensurate with the safety changes that might occur due to valves. Further, the ASME developed significance of the SSCs in order to treatment changes. Another industry comprehensive pump testing provisions ensure with reasonable confidence that commenter stated that cross-system to provide more appropriate testing RISC–3 safety-related functional common cause interactions are rarely under significant flow conditions in capability is maintained. modeled in PRAs. Similarly, another light of the weakness of the previous II.1.6.2.5 Design Basis Conditions industry commenter indicated that Code testing under minimal loading degradation mechanisms resulting from conditions. In SECY–00–0194, the NRC Under § 50.69, RISC–3 SSCs will be treatment processes are typically not noted that a wide variation existed in exempt from special treatment considered in PRAs. The treatment industrial practices. Therefore, certain requirements for qualification methods practices for plant SSCs must support industrial practices may not be for environmental conditions and effects the capability credited in the sufficient to satisfy the treatment and seismic conditions. Nevertheless, requirements for RISC–3 SSCs in RISC–3 SSCs continue to be required to categorization process for there to be § 50.69. To address these concerns, the be capable of performing their safety- reasonable confidence that any increase Commission clarified the rule related functions under applicable in risk remains small. Therefore, requirements to indicate that the environmental conditions and effects § 50.69(d)(2) was clarified to explicitly treatment of RISC–3 SSCs must be and seismic conditions, albeit at a lower require the treatment of RISC–3 SSCs to consistent with the categorization level of confidence as compared to be consistent with the categorization process. One way to achieve this RISC–1 SSCs. Based on industry process. consistency could be the application of comments on the proposed rule, some

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licensees appeared to interpret the II.1.6.2.7 Seismic Experience Data whether the new rule contains special proposed rule language as not requiring Several industry commenters stated treatment requirements that should be evaluation of environmental and that the SOC for the proposed rule within the scope of § 50.69. The seismic capability of RISC–3 SSCs. For might create additional burden on Commission agreed with this comment. example, one industry commenter plants licensed before implementation The Commission noted in the proposed stated that § 50.69 exempts RISC–3 of Appendix A to 10 CFR Part 100. In rule (Section III.4.9.3) that there may be electrical equipment from aging issues establishing § 50.69, the Commission a need to scope into § 50.69 certain and that the rule would not require the does not intend to alter the existing provisions of the old § 50.44 dependent establishment of design life for RISC–3 seismic design requirements for RISC–3 on the outcome of the effort to risk electrical equipment. Contrary to the SSCs in any plant’s design basis. inform the § 50.44 requirements. The public comment, a licensee Industry commenters also raised revised § 50.44 has no special treatment implementing § 50.69 must consider concerns regarding the SOC discussion requirements. However, when § 50.44 operating life (aging) and combinations on use of seismic experience data. In was revised, a portion of the old § 50.44 of operating life parameters (synergistic meeting § 50.69, the licensee or regarding application of Appendix B effects) in the design of RISC–3 applicant must have adequate technical requirements to high point vents was electrical equipment. This is bases to conclude that RISC–3 SSCs will moved to § 50.46a. This particular particularly important if the equipment perform their safety-related functions requirement was not risk-informed as contains materials which are known to under seismic design basis conditions, part of the § 50.44 effort and was instead be susceptible to significant degradation which includes the number and simply relocated. Because application of due to thermal, radiation, and/or wear magnitude of earthquake events Appendix B is a special treatment (cyclic) aging including any known specified for the SSC design. Some requirement, the Appendix B portion of § 50.46a(b) has been included within the synergistic effects that could impair the commenters implied that it would be scope of § 50.69 by the inclusion of ability of the equipment to meet its acceptable to use ‘‘experience data’’ § 50.69(b)(1)(ii). design basis function. However, the alone to have reasonable confidence that Commission agrees that the applicable an SSC is capable of functioning during II.1.6.5 Basis for RISC–3 SSC rule language can be simplified and has an earthquake even if there is no actual Reliability Used in § 50.69(c)(1)(iv) revised the final rule to utilize a ‘‘experience data’’ for the SSC. While Evaluation performance-based approach to the use of experience data is not ensuring with reasonable confidence the A number of comments were received prohibited by the rule, it may be regarding the technical basis for the functional capabilities of RISC–3 SSCs. difficult for a licensee or applicant to RISC–3 SSC reliability (failure rates) to Accordingly, the final rule has been show that experience data alone will be used in the risk sensitivity study revised by deleting the reference to the satisfy the applicable design performed to meet § 50.69(c)(1)(iv) specific conditions that were requirements of 10 CFR part 100 (which requirements to demonstrate reasonable parenthetically listed in the proposed § 50.69 leaves intact). The Commission confidence that any potential risk rule. clarified the SOC with respect to the use increase from implementation of the II.1.6.2.6 Corrective Action of seismic experience data and to rule is small. Some commenters indicate that § 50.69 will not change the suggested that licensees or applicants Some public commenters raised seismic design basis for Unresolved that voluntarily implement the rule concerns regarding the lack of Safety Issue (USI) A–461 plants or should be required to characterize and requirements for the consideration of impose additional seismic requirements reasonably bound the specific effects of common-cause issues for RISC–3 SSCs. for those plants. eliminating treatment on SSC reliability An industry commenter also noted this II.1.6.3 Feedback under design basis and severe accident omission in the proposed rule and conditions. Other commenters suggested provided proposed rule language to Several industry commenters that there is evidence that reductions in resolve this issue. Therefore, the requested adjustments to the feedback treatment (using industry practices) has Commission decided to revise requirements in § 50.69(e)(1) to provide no impact on SSC reliability. § 50.69(d)(2)(ii) to require that, for more efficient implementation of the The NRC recognizes that the significant conditions adverse to quality rule. Upon consideration of those reliability of RISC–3 SSCs could associated with RISC–3 SSCs, measures comments, the Commission revised potentially decrease (RISC–3 SSC failure shall be taken to provide reasonable § 50.69(e)(1) to replace the maximum rates increase) due to the reduction in confidence that the cause of the time interval for updating the treatment applied to these SSCs as a condition is determined and corrective categorization and treatment processes result of § 50.69 implementation. This is action is taken to preclude repetition. from 36 months to two refueling the reason why the Commission The revised corrective action outages, and to indicate that the licensee requires in the rule that the licensee requirement is consistent with a or applicant may adjust either its demonstrate with reasonable confidence proposal by the Nuclear Energy Institute categorization process or its treatment that any potential risk increase due to and uses language that is similar to 10 processes in satisfying the feedback implementation of the rule will be CFR part 50 Appendix B Criterion XVI. requirement. small. However, the NRC also As such, this should be a well- II.1.6.4 Section 50.46a/Appendix B recognizes that it is difficult a priori to understood requirement that minimizes Requirements for High Point Vents relate specific changes in treatment the potential for common cause failures. directly to specific changes in SSC It is also consistent with the principle A comment was submitted that the reliability. The rule has been of performance-based regulation that NRC should undertake a review of the constructed to account for this non-compliance with the performance recently revised § 50.44 to determine difficulty. First, the categorization requirement should provide sufficient process that a licensee uses must 1 In December 1980 the NRC designated ‘‘Seismic margin such that reasonable assurance Qualification of Equipment in Operating Plants’’ as comply with the rule’s requirements. of public health and safety continues to an unresolved safety issue. For more information Second, this categorization process will be provided. refer to GL 87–02. be reviewed and approved by the NRC

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before implementation. These steps are already subjected to full regulatory performance of RISC–1 and RISC–2 to have high confidence that SSCs are requirements. They also commented SSCs credited in the PRA used in the appropriately categorized so that RISC– that it appeared that this requirements categorization process, including the 3 SSCs are of low individual safety was extending special treatment performance credited for beyond design significance. Third, licensees are requirements (such as Appendix B) to basis conditions. This is an important required to provide reasonable RISC–2 SSCs. In fact there was a general aspect of the rule. The categorization confidence that any risk increase due to consensus of comments that any process will result in a number of implementation is acceptably small and additional treatment requirements for safety-related SSCs being determined to this assessment must be supported by a RISC–1 and RISC–2 SSCs should be be of low safety significance (i.e., RISC– supporting technical justification that removed from the SOC or that the SOC 3) and subject to reduced treatment. discusses why the assessment be clarified to address the specific This determination of low safety adequately addresses the potential beyond design basis scope of additional significance will implicitly take credit reliability changes for RISC–3 SSCs. regulatory controls. First, the for the performance capability of other This basis may include reliance on the Commission notes that § 50.69(d)(1) SSCs in the PRA, some or all of which capability of the licensee’s data does not require licensees or applicants may not be included in the scope of the collection, feedback, and corrective to evaluate the application of special licensee’s categorization process (due to action , which are also addressed by treatment requirements to RISC–1 SSCs. the allowance for licensees to requirements of the rule. Finally, the These requirements are to maintain the selectively implement the rule and to rule has been revised to clarify the design basis functional requirements phase that implementation over time). linkage between treatment and with a high level of assurance. The To maintain the validity of the categorization and specifically to ensure special treatment requirements remain categorization process, and more that the treatment process is consistent intact and unchanged, and hence there importantly to maintain any potential with the categorization process, is no reason that an evaluation of the risk increase as small, it is necessary to including the risk sensitivity study (i.e., application of special treatment maintain the ‘‘credited’’ SSCs per maintain that any risk increase due to requirements should be required. § 50.69, and this means the application reduced treatment is acceptably small). Secondly, the Commission notes that it of §§ 50.69(d)(1) and 50.69(e)(2) Therefore, the rule is structured to is not the intent of § 50.69(d)(1) to requirements as suggested by the contain: simply extend special treatment comment. (1) Robust categorization and PRA requirements such as Appendix B to II.1.6.7 Adequate Protection requirements; RISC–1 and RISC–2 beyond design basis Comments (2) Requirements to show that functions. Instead, the focus of The NRC received several comments implementation risk is small; § 50.69(d)(1) is on the PRA credited indicating that the proposed regulation (3) A new provision to make it clear performance of RISC–1 and RISC 2 SSCs would not maintain adequate protection that the treatment applied to RISC–3 for beyond design basis conditions, and of public health and safety. The SSCs must be consistent with (i.e., specifically for ensuring that there is a Commission disagrees with these maintain the validity of) the valid technical basis for the credit taken comments and concludes that both the categorization process; in the PRA (i.e., there must be a valid proposed rule requirements and the (4) Feedback requirements of technical basis for the failure rate/ § 50.69(e) to maintain the validity of the final rule requirements maintain probability of the SSC performing the adequate protection for the reasons categorization process; and, function). The basis for this credit (5) The high-level RISC–3 discussed in Section III.7.0 of this should already be established and requirements designed to maintain notice. documented in the PRA supporting RISC–3 SSC design basis functional documentation, so this should not be an II.1.6.8 License Amendment capability. Thus, the Commission finds that the additional burden for licensees to A commenter stated that the rule, as revised, has the appropriate capture and implement. If an existing requirement to prepare, submit, and provisions for addressing the concerns technical basis does not exist or is then receive approval of a license regarding the basis for RISC–3 SSC insufficient to support the credit taken amendment to implement § 50.69 is a reliability used in the risk sensitivity in the PRA, then § 50.69(d)(1) would disincentive to its use. The commenter study to be performed to meet the require that a technical basis be argued that, in light of the desire to § 50.69(c)(1)(iv) requirement to developed for the credit taken; move to a more performance-based demonstrate with reasonable confidence potentially including the creation of a regulatory regime, voluntary that any potential risk increase from treatment program for the SSC that implementation of § 50.69 should be implementation of the rule is small. validates the capability credited. developed by licensees using the Regarding the issue of ‘‘credited’’ requirements in the rule and any II.1.6.6 RISC–1 and RISC–2 Treatment SSCs, several commenters stated that attendant regulatory guidance, with Requirements and Crediting SSCs the SOC implied an enormous program routine NRC inspection serving to verify A number of industry stakeholders would be required if a licensee decides acceptable compliance. The commented on the treatment to selectively implement § 50.69 for a Commission has decided not to revise requirements applicable to RISC–1 and set of systems. It was commented that § 50.69 in response to this comment. RISC–2 SSCs in § 50.69(d)(1). These this enormous program would result The Commission continues to conclude stakeholders commented that this due to the application of §§ 50.69(d)(1) that (as discussed in Section III.6.0 of requirement obligated a licensee and 50.69(e)(2) to maintain credited this rule) the review of the license implementing § 50.69 to evaluate performance within the PRA and amendment submittal will involve treatment applied to all safety thereby enable the selected set of SSCs substantial engineering judgment on the significant SSCs to ensure adequacy of to be categorized as low safety part of NRC reviewers, inasmuch as the treatment and cited this as an added significant. As the Commission has rule does not contain objective, non- burden that is neither necessary nor already noted, § 50.69(d)(1) obligates discretionary criteria for assessing the appropriate because RISC–1 SSCs are licensees to have a basis to support the adequacy of the PRA process, PRA

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review results and sensitivity studies. requirements for SSCs determined to be an overlay of the new risk-informed Consistent with the Commission’s of low safety significance. The categorization. In the traditional decision in Cleveland Electric determination of safety significance is deterministic approach, SSCs were Illuminating Co. (Perry Nuclear Power performed by an integrated decision- generally categorized as either ‘‘safety- Plant, Unit 1), CLI–96–13, 44 NRC 315 making process which uses both risk related’’ (as defined in § 50.2) or (1996), the final rule requires NRC insights and traditional engineering nonsafety-related. This division is approval to be provided by issuance of insights. The safety functions include shown by the vertical line in the figure. a license amendment. both the design basis functions (derived Risk insights, including consideration of from the ‘‘safety-related’’ definition, III. Final Rule severe accidents, can be used to identify which includes external events), as well SSCs as being safety significant or low The Commission is establishing as functions credited for severe safety significant (shown by the § 50.69 as an alternative set of accidents (including external events). horizontal line). Hence, the application requirements whereby a licensee or Treatment requirements for the SSCs are of a risk-informed categorization results applicant may undertake categorization applied as necessary to maintain in SSCs being grouped into one of four of its SSCs consistent with the functionality and reliability and are a categories as represented by the four requirements in § 50.69(c) and adjust function of the category into which the boxes in Figure 1. treatment requirements per § 50.69(d) SSC is categorized. Finally, assessment based upon the resulting significance. activities are conducted to make Box 1 of Figure 1 depicts safety- Under this approach, a licensee or adjustments to the categorization and related SSCs that a risk-informed applicant is allowed to remove the treatment processes as needed so that categorization process determines are special treatment requirements listed in SSCs continue to meet applicable significant contributors to plant safety. § 50.69(b) for SSCs that are determined requirements. The rule also contains These SSCs are termed RISC–1 SSCs. to be of low safety significance while requirements for obtaining NRC RISC–2 SSCs, depicted by box 2 in potentially enhancing requirements for approval of the categorization process Figure 1, are nonsafety-related SSCs that treatment of other SSCs that are found and for maintaining plant records and the risk-informed categorization to be safety significant. The reports. determines to be significant contributors requirements establish a process by to plant safety. The third category are which a licensee categorizes SSCs using III.1.0 Categorization of SSCs those SSCs that are safety-related SSCs a risk-informed process, adjusts Section 50.69 defines four RISC and that a risk-informed categorization treatment requirements consistent with categories into which SSCs are process determines are not significant the relative significance of the SSC, and categorized. Four categories were individual contributors to plant safety. manages the process over the lifetime of chosen because it is the simplest These SSCs are termed RISC–3 SSCs the plant. To implement these approach for transitioning between the and are depicted by box 3 in Figure 1. requirements, a risk-informed previous SSC classification scheme and Finally, there are SSCs that are categorization process is employed to the new scheme used in § 50.69. The nonsafety-related and that a risk- determine the safety significance of depiction in Figure 1 provides a informed categorization process SSCs and place the SSCs into one of conceptual understanding of the new determines are not significant four RISC categories. It is important that RISC categories. The figure depicts the contributors to plant safety. These SSCs this categorization process be robust to current safety-related versus nonsafety- are termed RISC–4 SSCs and are enable the Commission to remove related SSC categorization scheme with depicted by box 4 in Figure 1.

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Section 50.69 defines the terminology reasonable confidence that the change information pertaining to SSC safety ‘‘safety significant function’’ as in risk associated with implementation significance is considered by a panel functions whose loss or degradation of § 50.69 will be small. (referred to as either an expert panel or could have a significant adverse effect III.2.0 Methodology for Categorization an integrated decision-making panel on defense-in-depth, safety margins, or (IDP)) that has the expertise and risk. This definition was chosen to be The cornerstone of § 50.69 is the capabilities for making a sound decision consistent with the concepts described establishment of a robust, risk-informed regarding the SSC’s categorization, and in RG 1.174. The rule maintains more categorization process that provides that the assembled information is treatment requirements on SSCs that high confidence that the safety considered in a manner that ensures the perform safety significant functions significance of SSCs is correctly Commission’s criteria for risk-informed (RISC–1 and RISC–2 SSCs) than on determined considering all relevant applications are satisfied (i.e., defense- SSCs that perform low safety significant information. As such, all the in-depth is maintained, reasonable functions to ensure that defense-in- categorization requirements confidence that safety margins are depth and safety margins are incorporated into § 50.69 are to achieve maintained, reasonable confidence that maintained. The rule also requires that this objective. Essentially, the process is any risk increase is small, and a the licensee or applicant provide structured to ensure that all relevant monitoring and performance assessment

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strategy is used). This process enables decision process. The information plant and the licensee is not required to SSCs to be placed in the correct RISC considered must reasonably reflect the come back to the NRC for review of the category so that the appropriate as-built and as-operated plant so that categorization process provided that treatment requirements will be applied the decisions are based upon correct licensee remains within the scope of the commensurate with the SSC’s safety information, leading to proper NRC’s safety evaluation). The NRC’s significance. A safety significant SSC is categorization. Where applicable, the review of the § 50.69 submittal will an SSC that performs a safety significant information is to come from a PRA that determine whether § 50.69 requirements function as defined in § 50.69. The rule is adequate for this application (i.e., are satisfied and consider the adequacy requires that SSC safety significance be categorization of SSC safety of the PRA; focusing on the results of determined using quantitative significance). From this perspective, the the peer review and the actions taken by information from a PRA that reasonably IDP decision process can be viewed as the licensee to address any peer review represents the as-built, as-operated, an extension of the previous process for findings. The Commission has current plant configuration, and which determining SSC safety classification determined that a focused NRC review at a minimum covers internal events at (i.e., safety-related or nonsafety-related), of the PRA is necessary because there full power. The categorization process in that it is making use of relevant risk are key assumptions and modeling must address both internal events and information that was not considered or parameters that can have a significant external events for all modes of not available when the SSCs were impact on the results so that NRC operation and can use other available initially classified. The IDP makes the review of their adequacy for this risk analyses and traditional engineering final determination of the safety application is considered necessary to information to supplement the significance of SSCs using a process that verify that the overall categorization quantitative PRA results to address takes all this information into process will yield acceptable decisions. modes and events not within the scope consideration, in a structured, Section 50.69(c)(1)(iv) requires of the PRA. documented manner. The structure reasonable confidence that the increase Section 50.69(c)(1)(i) ensures that the provides consistency to decisions that in the overall plant core damage PRA is adequate for this application. may be made over time and the frequency (CDF) and large early release Section 50.69(c)(1)(iii) requires that documentation gives both the licensee frequency (LERF) resulting from defense-in-depth is maintained as part and the NRC the ability to understand potential decreases in the reliability of of the categorization process. Section the basis for the categorization decision, RISC–3 SSCs as a result of the changes 50.69(c)(1)(iv) requires that the revised should questions arise at a later date. treatment applied to RISC–3 SSCs be Section 50.69(c)(1)(ii) contains in treatment be small. The rule further considered for its potential impact on general requirements for consideration requires the licensee (or applicant) to risk. As an example, the Commission’s of SSCs, modes of operation, and describe the evaluations to be performed position is that the containment and its initiating events not modeled in the to meet this requirement. As presented systems are important in the PRA. As a result, the implementing in RG 1.174, the NRC considers small preservation of defense-in-depth (in guidance plays a significant role in changes to be relative and to depend on terms of both large early and large late effective implementation and bolsters the current plant CDF and LERF (hence releases). As part of maintaining the need for NRC review and approval we also refer to ‘‘acceptably small’’ defense-in-depth, a licensee must of the categorization process before changes in other portions of this notice demonstrate that the function of the implementation. since small can be different for different containment as a barrier (including The PRA used to provide the risk plants with different baseline levels of fission product retention and removal) information to the categorization risk). For plants with total baseline CDF is not significantly degraded when SSCs process is required to be subjected to a of 10–4 per year or less, small means that support the functions are moved to peer review. The peer review focuses on CDF increases of up to 10–5 per year RISC–3. the PRA’s completeness and technical and for plants with total baseline CDF Section 50.69(c)(2) requires the risk adequacy for determining the greater than 10–4 per year, small means insights and other traditional importance of particular SSCs, CDF increases of up to 10–6 per year. information to be evaluated by the IDP including consideration of the scope, However, if there is an indication that and this panel must be comprised of level of detail, and technical quality of the CDF may be considerably higher expert, plant-knowledgeable members the PRA model, the assumptions made than 10–4 per year, the focus of the whose expertise includes PRA, safety in the development of the results, and licensee should be on finding ways to analysis, plant operation, design the uncertainties that impact the decrease rather than increase CDF and engineering, and system engineering. analysis. This provides confidence that the licensee may be required to present Because the IDP makes the final for IDP decisions that use PRA arguments as to why steps should not be determination about the safety information, the results of the taken to reduce CDF for the reduction in significance of an SSC, the Commission categorization process provide a valid special treatment requirements to be concludes that the requirements in representation of the risk importance of considered. For plants with total § 50.69(c)(2) are necessary for the SSCs. baseline LERF of 10¥5 per year or less, composition of the panel to be Before a licensee may implement small LERF increases are considered to experienced personnel who possess § 50.69, the NRC must approve the be up to 10¥6 per year, and for plants diverse knowledge and insights in plant categorization process through a license with total baseline LERF greater than design and operation and who are amendment. This is necessary because 10–5 per year, small LERF increases are capable in the use of deterministic of the importance of the PRA and considered to be up to 10–7 per year. knowledge and risk insights to categorization process to successful However, if there is an indication that categorize SSCs. implementation of the rule. This review the baseline CDF or LERF may be As mentioned previously, the § 50.69 and approval of the categorization considerably higher than 10¥4 or 10¥5, categorization process requires that process is a one-time, process approval respectively, the licensee either must available deterministic and probabilistic (i.e., the approval is not restricted to a find ways to reduce risk and present the information pertaining to SSC safety set of systems or structures, and can be arguments to the NRC staff before significance be considered in the applied to any system or structure in the implementation of § 50.69, otherwise it

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is likely that the NRC will deny the common-cause failures could invalidate requires the treatment applied to RISC– § 50.69 application. This is consistent the evaluations performed to show that 1 and RISC–2 SSCs to be consistent with with the guidance in Section 2.2.4 of RG any potential change in risk due to the performance credited in the 1.174. It should be noted that this implementation of § 50.69 would be categorization process. This includes allowed increase shall be applied to the small. With respect to known credit with respect to prevention and overall categorization process, even for degradation mechanisms, this is an mitigation of severe accidents. In some those licensees that will implement acknowledgment that certain treatment cases, licensees might need to enhance § 50.69 in a phased manner. This means requirements have evolved over time to the treatment applied to RISC–1 or that the allowable potential increase in deal with these mechanisms (e.g., use of RISC–2 SSCs to support the credit taken risk must be determined in a cumulative particular inspection techniques or in the categorization process, or way for all SSCs being categorized frequencies), and that when conversely adjust the credit for under § 50.69. contemplating changes to treatment, the performance of the SSC in the Section 50.69 is structured to lessons from this experience are to be categorization process to reflect actual maintain the design basis functional taken into account. treatment practices and/or documented requirements of the plant. These For SSCs categorized by means other performance capability. In addition, requirements (that maintain design basis than PRA models, the licensee needs to § 50.69(e) requires monitoring and functional requirements) when provide a basis to conclude that any adjustment of treatment processes or considered in conjunction with the potential increase in risk that might categorization decisions as needed requirements to provide reasonable result from reduced treatment would be based upon operational experience. confidence that the potential change in small. These requirements are included risk is small (as previously discussed), in § 50.69 so that a licensee has a basis III.3.2 RISC–3 Treatment also provide reasonable confidence that for concluding that the evaluations Section 50.69(d)(2) imposes safety margins are maintained. performed to provide reasonable requirements that are intended to Specifically, licensees are required to confidence that only a acceptably small maintain RISC–3 SSC design basis ensure with reasonable confidence that change in risk will result remain valid. capability. Although individually RISC– RISC–3 SSCs remain capable of In addition, the rule requires that 3 SSCs are not significant contributors performing their design basis functions implementation be performed for an to plant safety, they do perform and these SSCs must remain capable of entire system or structure and not for functions necessary to respond to performing their design basis function, selected components within a system or certain design basis events of the e.g., by providing a reliability that is not structure. This required scope ensures facility. Thus, collectively, RISC–3 SSCs significantly degraded, to provide that all safety functions associated with can be safety significant and as such, it reasonable confidence that any a system or structure are properly is important to maintain their design increases in CDF or LERF will be identified and evaluated when basis functional capability. Maintenance acceptably small. determining the safety significance of of RISC–3 design basis functionality is Section 50.69(c)(1)(iv) requires individual components within a system important to ensure that defense-in- applicants and licensees to perform or structure and that the entire set of depth and safety margins are evaluations to assess the potential components that comprise a system or maintained. As a result, § 50.69(d)(2) impact on risk from changes to structure are considered and addressed. requires that licensees or applicants treatment. Further, § 50.69(d)(2) requires ensure with reasonable confidence that that the treatment applied to RISC–3 III.3.0 Treatment Requirements RISC–3 SSCs remain capable of SSCs be consistent with the The final rule applies treatment performing their safety-related functions categorization process. For SSCs requirements to SSCs commensurate under design basis conditions, modeled in the PRA, the licensee or with their safety significance. including seismic conditions and environmental conditions and effects applicant might conduct a risk III.3.1 RISC–1 and RISC–2 Treatment sensitivity study that assesses the throughout their service life. To support impact of changes in SSC failure For SSCs determined by the IDP to be this requirement, § 50.69(d)(2) contains probabilities or reliabilities that might safety significant (i.e., RISC–1 and inspection, testing, and corrective action occur due to the revised treatment. For RISC–2 SSCs), § 50.69 maintains the requirements, and in addition requires example, a licensee could increase the current regulatory requirements (i.e., it that the treatment of RISC–3 SSCs be failure rates of RISC–3 SSCs by does not remove any requirements from consistent with the categorization appropriate factors to provide insights these SSCs) for special treatment. These process. The requirements are into the potential changes in risk that current requirements are adequate for performance-based and give licensees might result from reduced treatment addressing design basis performance of the flexibility to implement treatment (e.g., reduced maintenance, testing, these SSCs. Additionally, § 50.69(d)(1) that they have determined is needed, inspection, and quality assurance). For requires that sufficient treatment be commensurate with the low safety other SSCs, other types of evaluations applied to support the credit taken for significance of the SSCs in order to would be used to provide the basis for these SSCs for beyond design basis provide reasonable confidence that their concluding that the potential increase in events. For example, in developing the safety-related functional capability is risk would be small. Under PRA model, a licensee must determine maintained. In this context, ‘‘reasonable § 50.69(b)(2)(iv), a licensee will need to the availability, capability, and confidence’’ is a somewhat reduced submit its basis supporting the reliability of RISC–1 and RISC–2 SSCs level of confidence as compared with evaluations that estimate the potential in performing specific functions under the relatively high level of confidence change in risk. A licensee is required by various plant conditions. These provided by the current special § 50.69(b)(2)(iv) to consider potential functions may be beyond the design treatment requirements. These effects of common-cause interaction basis for individual SSCs. Further, the alternative treatment requirements for susceptibility and potential impacts conditions under which those functions RISC–3 SSCs represent a relaxation of from known degradation mechanisms. are to be performed may exceed the those special treatment requirements The rule focuses on common-cause design basis conditions for the that are removed for RISC–3 SSCs by the effects because significant increases in applicable SSCs. Section 50.69(d)(1) rule. For example, the alternative

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treatment requirements for RISC–3 SSCs changes to special treatment licensees. Hence, implementation of in § 50.69 are less detailed than requirements) must be made per § 50.69 should result in a better focus provided in the special treatment existing design change control for both the licensee and the regulator requirements and allow significantly requirements including § 50.59, as on issues that pertain to plant safety and more flexibility by licensees in treating applicable. is consistent with the Commission’s RISC–3 SSCs. The Commission is policy statement for the use of PRA. III.4.0 Removal of RISC–3 and RISC–4 allowing greater flexibility and a lower In some cases, the Commission SSCs From the Scope of Special level of assurance to be provided for concluded that the RISC–3 and RISC–4 Treatment Requirements RISC–3 SSCs in recognition of their low SSCs could be removed from the scope individual safety significance and this Through the application of § 50.69, of specific special treatment recognition includes a consideration for RISC–3 and RISC–4 SSCs are removed requirements, while in other cases the the potential change in reliability that from the scope of the specific special Commission concluded that only partial might occur when treatment is reduced treatment requirements listed in removal was appropriate. Finally, there from what had previously been required § 50.69(b)(1). The special treatment was a set of requirements initially by the special treatment requirements. requirements were originally imposed to identified as special treatment for which In implementing the rule provide a high level of assurance that the Commission is not removing RISC– requirements, licensees will need to safety-related SSCs would perform 3 and RISC–4 SSCs from their scopes. obtain data or information sufficient to when called upon with high reliability. These requirements are discussed in make a technical judgement that RISC– As previously noted, the requirements Section III.4.10. 3 SSCs will remain capable of include extensive quality assurance III.4.1 Reporting Requirements Under performing their safety-related functions requirements and qualification testing 10 CFR Part 21 and § 50.55(e) under design basis conditions, and to requirements, as well as inservice enable the licensee to take actions to inspection and testing requirements. Section 206 of the Energy restore equipment performance These requirements can be quite Reorganization Act of 1974 (ERA) consistent with corrective action demanding and expensive, as indicated requires the directors and responsible requirements included in the rule. in the data provided in the regulatory officers of nuclear power plant licensees Effective implementation of the analysis on procurement costs. The and firms supplying ‘‘components of treatment requirements should result in Commission concluded that, in light of any facility or activity * * * licensed or reasonable confidence that RISC–3 SSCs the low individual safety significance of otherwise regulated by the will perform their safety-related RISC–3 SSCs, it is unnecessary to have Commission’’ to ‘‘immediately report’’ function under normal and design basis the same high level of assurance that to the Commission if they have conditions. This level of confidence is they would perform as designed. This is information that such facility, activity, both less than that associated with because some increased likelihood of or basic components supplied to such RISC–1 SSCs, which are subject to all their individual failure can be tolerated facility or activity either fails to comply special treatment requirements, and without significant impact to safety. with the AEA, or Commission rule, consistent with the low individual Thus, the Commission decided to regulation, order or license ‘‘relating to safety significance of RISC–3 SSCs. remove the RISC–3 and RISC–4 SSCs substantial safety hazards,’’ or contains It is noted that changes that affect any from those detailed, specific a ‘‘defect which could create a non-treatment aspects of an SSC (e.g., requirements that provided the high substantial safety hazard * * *’’ Id., changes to the SSC design basis level of assurance. However, the paragraph (a). Congress adopted Section functional requirements) are still functional requirements for these SSCs 206 to ensure that individuals, and required to be evaluated in accordance remain. As an example, a RISC–3 responsible directors and officers of with other regulatory requirements, component must still be designed to licensees and firms supplying important such as § 50.59. The Commission, in withstand any harsh environment it components to nuclear power plants developing § 50.69, is drawing a would experience under a design basis notify the NRC in a timely fashion of distinction between treatment (managed event, but the NRC will not require that potentially significant safety problems through § 50.69) and design changes this capability be demonstrated by a or noncompliance with NRC (managed through other processes, such qualification test. Further, the requirements. The NRC then may assess as § 50.59). As previously noted, this performance (and treatment) of these the reported information and take any rulemaking is only risk-informing the RISC–3 SSCs remain under regulatory necessary regulatory action in a timely scope of special treatment requirements. control, but in a different way. Instead fashion to protect public health and The process and requirements of the special treatment requirements, safety or common defense and security. established in § 50.69 do not extend to the Commission has set forth more Congress did not include definitions for making changes to the design basis general requirements by which a the terms, ‘‘components,’’ ‘‘basic functional requirements of SSCs. licensee is to maintain functionality. components,’’ or ‘‘substantial safety These requirements give the licensee hazard,’’ in Section 206, but instead III.3.3 RISC–4 Treatment more latitude in applying treatment to directed the Commission to issue Section § 50.69 does not impose any maintain the design basis functional regulations defining these terms. new treatment requirements on RISC–4 capability of the RISC–3 SSCs. The more The Commission’s regulations SSCs. Instead, RISC–4 SSCs are simply general requirements that the implementing Section 206 appear in 10 removed from the scope of any Commission is specifying for the RISC– CFR part 21 and § 50.55(e) for license applicable special treatment 3 SSCs include inspection, testing, and holders and construction permit requirements identified in § 50.69(b)(1). corrective action, as a means of holders, respectively. The Commission This is justified in view of their low maintaining functionality. As discussed established definitions of ‘‘basic significance considering both safety- elsewhere in the SOC of this rule, the component,’’ ‘‘defect,’’ and ‘‘substantial related and risk information. Commission concludes that the safety hazard’’ in part 21 on the premise Requirements applicable to RISC–4 requirements in § 50.69 will maintain that the deterministic regulatory SSCs not removed by § 50.69(b)(1) adequate protection of public health and paradigm embedded in the continue to apply. Any changes (beyond safety if effectively implemented by Commission’s regulations would

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continue to be the appropriate basis for licensees and vendors under § 50.69, may make a determination if such a determining the safety significance of an and whether changes to part 21 and/or safety hazard requires that immediate SSC, and therefore, the extent of the § 50.55(e) are necessary to impose the NRC regulatory action be taken at one or reporting obligation under Section 206. intended reporting obligations on these more nuclear power plants to ensure This is most evident in the § 21.3 entities under § 50.69. adequate protection to public health and safety or common defense and security. definition of ‘‘basic component,’’ which III.4.1.1 RISC–1, RISC–2, RISC–3, and The second is to ensure that nuclear is similar to the definition of ‘‘safety- RISC–4 SSCs related’’ SSCs in § 50.2 (originally power plant licensees are immediately embodied in § 50.49). Part 21 also After consideration of the underlying informed of a potentially significant recognizes that Congress did not intend purposes of Section 206 and the risk- noncompliance or defect in supplied that every potential noncompliance or informed approach embodied in § 50.69 components. This reporting allows a ‘‘defect’’ in a component raises such (which blends both deterministic and licensee using these components to significant safety issues that the NRC risk information), the Commission immediately evaluate the must be informed of every identified or believes that RISC–1 SSCs should be noncompliance or defect to determine if potential noncompliance or defect. subject to the reporting requirements in a safety hazard exists at the plant and Instead, Congress limited the Section part 21 and § 50.55(e) because of their take timely corrective action as 206 reporting requirement to those high safety significance. The NRC necessary. In both cases, the regulatory instances of noncompliance and defects should be informed of any potential objective is limited to components that that represent a ‘‘substantial safety defects or noncompliance with respect have the highest significance with hazard.’’ Thus, part 21 limits the to RISC–1 SSCs so that it may evaluate respect to ensuring adequate protection reporting requirement to instances of the significance of the defects or to public health and safety and common noncompliance and defects representing noncompliance and take appropriate defense and security and whose failure ‘‘substantial safety hazard,’’ which part action. The fact that properly- or lack of proper functioning could 21 defines as: categorized RISC–1 SSCs in all create an imminent safety hazard so that likelihood fall within the Commission’s immediate evaluation of the situation A loss of safety function to the extent definition of ‘‘basic components’’ and there is a major reduction in the degree and implementation of necessary are currently subject to part 21 and corrective action is necessary to ensure of protection afforded to public health § 50.55(e) provides confirmation that the and safety for any facility or activity adequate protection. In the context of a Commission’s determination is prudent. construction permit, the safety hazard is licensed, other than for export, pursuant Similarly, the Commission believes to parts 30, 40, 50, 60, 61, 63, 70, 71, two-fold: that SSCs categorized as RISC–4 should (1) That a noncompliance or defect or 72 of this chapter. continue to be beyond the scope of, and could be incorporated into construction Finally, Part 21 establishes that a not be subject to, part 21 and § 50.55(e). where it could never be detected; and, licensee or vendor should ‘‘immediately SSCs properly categorized as RISC–4 (2) That a noncompliance or defect report’’ potential noncompliance or have little or no risk significance. It is would, upon initial operation and defects to the NRC in a telephonic highly unlikely that any significant without prior indications of failure, ‘‘notification’’ (see § 21.3) within two (2) regulatory action would be taken by the create a substantial safety hazard. days of receipt of information NRC based upon information on defects The Commission believes that the identifying a noncompliance or defect or instances of noncompliance in RISC– regulatory objectives embodied in part in a basic component (see § 21.21(d)). In 4 SSCs so reporting them serves no 21 and § 50.55(e) reporting remain the addition, part 21 requires that vendors/ regulatory purpose. Again, the fact that same regardless of whether the nuclear suppliers of basic components must SSCs properly categorized as RISC–4 do power plant is operating under the make notifications to purchasers or not otherwise fall within the definition existing, deterministic regulatory system licensees of a reportable noncompliance of ‘‘basic component’’ and, therefore, are or the alternative, risk-informed system or deviation within five (5) working not subject to part 21 and § 50.55(e) embodied in § 50.69. In both cases, the days of completion of evaluations for provides some confirmation of the reporting scheme should focus on determining whether noncompliance or prudence of the Commission’s immediate reporting to the NRC and deviation constitutes a substantial safety determination. licensee of potentially significant hazard (see § 21.21(b)). Thus, Part 21 Thus, the most problematic issue from noncompliances and defects that could establishes a reporting scheme for the standpoint of regulatory coherence create a substantial safety hazard immediate reporting of the most safety is determining the appropriate scope of requiring immediate evaluation and significant noncompliances and defects, reporting for RISC–2 and RISC–3 SSCs. corrective action to ensure continuing as contemplated by Section 206 of the For the following reasons, the adequate protection. Accordingly, in ERA. Commission proposes that neither determining whether RISC–2 and RISC– Section 50.69 substitutes a risk- RISC–2 nor RISC–3 SSCs be subject to 3 SSCs should be subject to part 21 informed approach for regulating part 21 and § 50.55(e) reporting reporting, the Commission assessed nuclear power plant SSCs for the requirements. whether failure or malfunction of these current deterministic approach. The Commission begins by SSCs could reasonably lead to a safety Therefore, it is necessary from the considering the regulatory objective of hazard so that immediate evaluation of standpoint of regulatory coherence to Part 21 and § 50.55(e) reporting under the situation and implementation of determine: (1) what categories of SSCs Section 206 and believes that there are necessary corrective action is necessary (i.e., RISC–1, RISC–2, RISC–3, and two parallel regulatory purposes to ensure adequate protection. RISC–4) should be subject to part 21 and inherent in these reporting schemes. For RISC–2 SSCs, the Commission § 50.55(e) reporting under § 50.69 and The first objective is to ensure that the does not believe their failure or whether changes to part 21 and/or NRC is immediately informed of a malfunction could reasonably lead to a § 50.55(e) are necessary to ensure proper potentially significant noncompliance safety hazard so that immediate licensee reporting of substantial safety hazards or defect in supplied components (in and NRC evaluation of the situation and caused by these SSCs; and (2) the the broad sense of ‘‘basic components’’ implementation of necessary corrective appropriate reporting obligations of as defined in § 21.3) so that the NRC action is necessary to ensure adequate

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protection. Although a RISC–2 SSC may backup mitigation to RISC–1 SSCs in the current fleet of power reactors have be of significance for particular response to an event. been subjected to a number of risk sequences and conditions, for the The Commission recognizes that studies, including NUREG–1150, and reasons discussed below, the noncompliance by, or defects in, RISC– other generic and plant-specific reviews. Commission believes that no RISC–2 2 SSCs, which could increase risk, such While some safety improvements have SSC, in and of itself, is of such as by more frequent initiation of a been identified as a result of these significance that its failure or lack of transient, may appear to constitute a reviews, none has been of such function would necessitate immediate ‘‘substantial safety hazard.’’ However, significance as to require immediate notification and action by licensees and upon closer examination, the action. This essentially means that no the NRC. Commission believes otherwise. The SSCs categorized as RISC–2 would rise The categorization process embodied risk significance of such ‘‘transient- to the level of significance that their in § 50.69 determines the relative initiating’’ RISC–2 SSCs depends upon failure or lack of functionality would significance of SSCs, with those in their frequency of initiation, with constitute a substantial safety hazard RISC–1 and RISC–2 being more resultant consequences depending upon requiring immediate NRC regulatory significant than those in RISC–3 or the failure of multiple other components action. For example, in the case of two RISC–4. This does not mean that any of varying types in different systems. key risk scenarios, Station Blackout and RISC–2 SSC would rise to the level of Further, their risk significance, as Anticipated Transient Without Scram, necessitating immediate action if defects identified by the categorization process, the Commission imposed regulatory were identified. is a result of the reliability (failure rates) requirements to reduce risk from these RISC–1 SSCs are viewed as being of currently being achieved for these SSCs events. However, the rules were issued sufficient safety significance to require treated as commercial-grade as cost-beneficial safety improvements. part 21 reporting. It is the capability components, which includes the The Commission believes its conclusion provided by these RISC–1 SSCs for possibility of noncompliances and about the relative significance of RISC– purposes of satisfying safety-related defects. Because requirements on RISC– 2 SSCs is also supported by plant- functional requirements that also leads 2 SSCs are not being reduced, there is specific risk studies, such as the to RISC–1 SSCs being safety-significant, no reason to believe that their Individual Plant Examination (IPE) and as these are key functions in prevention performance would degrade as a result Individual Plant Examination of and mitigation of severe accidents. of implementation of § 50.69. In fact, by External Events (IPEEE),2 conducted to Thus, RISC–1 SSCs are generally better understanding of their safety identify (and correct) any plant-specific significant for a range of events and significance, and through the added vulnerabilities to severe accident risk. conditions and, as the primary means of requirements in this rule for RISC–2 NRC’s review of the licensee submittals accident prevention and mitigation, the SSCs to achieve consistency between has not identified any situations Commission wants to continue to their categorization and treatment, requiring immediate action for achieve the high level of quality, performance should, at a minimum, be protection of public health and safety. reliability, preservation of margins, and maintained and in some cases, In addition, as part of license renewal assurance of performance of current enhanced. As discussed in Sections III.3 reviews, the NRC reviews severe regulatory requirements. and III.5 of this rule, the Commission is accident mitigation alternatives By contrast, RISC–2 SSCs are less imposing additional regulatory controls (SAMAs), to identify and evaluate plant important than RISC–1 SSCs because on RISC–2 SSCs to prevent their design changes with the potential for they do not play a role in prevention performance from degrading. In improving severe accident safety and mitigation of design basis events addition, the Commission is requiring: performance. In the license renewals (i.e., the SSCs that assure the integrity (1) that licensees evaluate treatment completed to date, only a few candidate of the reactor coolant boundary, the being applied for consistency with the SAMAs have been found to be cost- capability to shut down the reactor and performance credited in the beneficial (and none were considered maintain it in a safe shutdown categorization; (2) monitoring of the necessary to provide adequate condition, or the capability to prevent or performance of these SSCs; (3) protection of public health and safety). mitigate the consequences of accidents corrective actions; and (4) reporting In light of risk assessments and that could result in potential offsite when a loss of a safety significant actions that have already been exposures comparable to the applicable function occurs. Thus, there are implemented, the Commission believes exposure guidelines set forth in requirements for corrective action by the there would be no SSCs categorized § 50.34(a)(1) or § 100.11). For example, licensee if noncompliances involving they are not part of the reactor these SSCs are identified. The 2 In Generic letter 88–20, dated November 23, protection system or engineered safety Commission concludes that these 1988, licensees were requested to perform features that perform critical safety individual plant examinations to identify plant- requirements are sufficient to preclude specific vulnerabilities to severe accidents that functions such as reactivity control, the need for Part 21 reporting, because might exist in their facilities and report the results inventory control and heat removal. no RISC–2 SSC is so significant as to to the Commission. As part of their review and When viewed from a deterministic necessitate immediate Commission (or report, licensees were asked to determine any cost- standpoint, RISC–2 SSCs are not licensee) action. beneficial improvements to reduce risk. In supplement 4 to the generic letter dated June 28, considered to rise to the level of a For RISC–2 SSCs that provide backup 1991, this request was extended to include external potential substantial safety hazard. mitigation to RISC–1 SSCs, the events (e.g., earthquakes, fires, floods). The NRC From the risk-informed perspective, Commission also finds it prudent and staff reviewed the plant-specific responses and SSCs may end up classified as RISC–2 desirable from a risk-informed prepared a staff evaluation report on each submittal. Further, the set of results were presented in for a number of reasons. The standpoint to provide an enhanced level NUREG–1560, IPE Program: Perspectives on Reactor classification might occur because: (1) of assurance that RISC–2 SSCs can Safety and Plant Performance. A similar report on they contribute to plant risk by perform their safety significant IPEEE results was issued as NUREG–1742. In initiating transients that could lead to functions, but the failure or malfunction addition, as discussed in SECY–00–0062, the staff has conducted IPE follow-up activities with owners severe accidents (if multiple failures of of these RISC–2 SSCs does not raise a groups and licensees to confirm that identified other mitigating SSCs were to occur); or concern about imminent safety hazards. improvements have been implemented and if any (2) they can reduce risk by providing Moreover, over the last several years, other actions were warranted.

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under § 50.69 as RISC–2 whose failure Rev. 1) 3. As previously discussed, the The Commission believes that the would represent a significant and body of regulatory requirements (i.e., current definition of ‘‘substantial safety substantial safety hazard so that the retained requirements and the hazard’’ in § 21.3 is broadly written to immediate notification under Part 21 requirements contained in this rule) are permit the Commission to interpret it as and NRC regulatory action is required. sufficient, if effectively implemented, so applying, in the context of a risk- Accordingly, the results of these risk that simultaneous failures in multiple informed regulatory approach, only to assessments provide additional systems (as would be necessary to lead RISC–1 SSCs. Section 50.69 embodies a confidence to the Commission that Part to a substantial safety hazard involving risk-informed regulatory paradigm that 21 requirements need not be imposed RISC–3 SSCs) would not occur. Further, is different in key respects from the on RISC–2 SSCs. the broad applicability of information Commission’s historical deterministic The Commission also considered if from a single RISC–3 SSC that would be approach and applies the risk-informed notification of component defects provided under Part 21 and § 50.55(e) approach to classifying a nuclear power should be required from the perspective reporting would be questionable plant’s SSCs according to the SSC’s risk of other potentially-affected licensees. because of the significant changes in significance. SSCs that are classified as The set of SSCs that are RISC–2 would treatment for RISC–3 SSCs allowed RISC–1 are those that represent the most vary from site to site because it depends under § 50.69. Accordingly, the important SSCs from both a risk and upon the specifics of plant design and Commission concludes that RISC–3 deterministic standpoint: they perform operation, particularly for the balance- SSCs should not be subject to reporting the key functions of preventing, of-plant which typically differs more requirements of Part 21 and § 50.55(e). controlling, and mitigating accidents from plant to plant than does the The Commission concludes that Part and controlling risk. Failure of RISC–1 nuclear steam supply portion. Further, 21 reporting requirements extend only SSCs represent, from a risk-informed the suppliers of these components to RISC–1 SSCs because they are regulatory perspective, the most would vary. Therefore, the specific type important in ensuring public health and important and significant safety of notifications under Part 21, for the safety. RISC–2 SSCs are not subject to concerns (i.e., a ‘‘substantial safety purposes of NRC assessment of generic reporting because they play a lesser role hazard’’). Therefore, the Commission implications of component defects and than RISC–1 SSCs in protection of believes that, in the context of the risk- to assure notification of licensees with public health and safety and with the informed regulatory approach embodied the same components in service, would significant changes in treatment allowed in § 50.69, it is reasonable for the not fulfill a useful regulatory function. under § 50.69, no regulatory purpose Commission to interpret ‘‘substantial The Commission notes that although would be served by Part 21 reporting (as safety hazard’’ as applying only to Part 21 and § 50.55(e) (component previously discussed). Individually, RISC–1 SSCs and that reporting under defect) reporting will not be required for RISC–3 and RISC–4 SSCs have little or Section 206 may be limited to RISC–1 RISC–2 SSCs, § 50.69(g) contains no risk significance and no regulatory SSCs. enhanced reporting requirements purpose would be served by subjecting The Commission considered two applicable to loss of system function RISC–3 and RISC–4 SSCs to Part 21 and alternative approaches for limiting the attributable to, inter alia, failure or lack § 50.55(e). reporting requirements in Part 21 and of function of RISC–2 SSCs. This is The Commission does not believe that § 50.55(e) to RISC–1 SSCs: (1) Interpreting ‘‘basic component’’ to discussed in greater detail in Section any changes to Part 21 or § 50.55(e) are encompass a risk-informed view of what III.5. necessary to accomplish its conclusions with respect to RISC–2 and RISC–3 SSCs the term encompasses; and, Therefore, because of the more (2) Including a second definition of SSCs. The Commission believes this is supporting role that the RISC–2 SSCs ‘‘basic component’’ in § 21.3, which consistent with the statutory play with respect to ensuring critical would apply only to those portions of a requirements in Section 206 of the ERA. safety functions, a noncompliance or plant that have been categorized in Section 206 does not contain any defect in a RISC–2 SSC would not result accordance with § 50.69 and would be definition of ‘‘substantial safety in a substantial safety hazard such that defined as an SSC categorized as RISC– hazard,’’ but contains a direction to the immediate licensee and NRC evaluation 1 under § 50.69. of the situation and implementation of Commission to define this term by The Commission does not believe that corrective action is necessary to ensure regulation. Nothing in the legislative the Part 21 definition of ‘‘basic adequate protection. Thus, the history suggests that Congress had in component’’ may easily be read as Commission believes that a mind a fixed and unchanging concept of simultaneously permitting both a noncompliance or defect in a RISC–2 ‘‘substantial safety hazard’’ or that the deterministic concept of basic SSC does not constitute a substantial term was limited to deterministic component and risk-informed concept, safety hazard for which reporting is regulatory principles. Hence, the inasmuch as the Part 21 definition was necessary under Part 21. Accordingly, Commission has broad discretion and drawn from, and was intended to be the Commission concludes that authority to determine the appropriate consistent with the definition of ‘‘safety- reporting requirements to comply with scope of reporting under Section 206. related SSC’’ in § 50.2. The § 50.2 Section 206 of the ERA are not definition of ‘‘afety-related SSC’’ refers necessary for RISC–2 SSCs and that the 3 NUREG–0302, ‘‘Remarks Presented (Questions and Answers Discussed) At Public Regional to the ability of the SSC to remain scope of Part 21 and § 50.55(e) reporting Meetings to Discuss Regulations (10 CFR Part 21) functional during ‘‘design basis events.’’ requirements exclude RISC–2 SSCs. for Reporting of Defects and Noncompliances.’’ The term, ‘‘design basis events’’ in The Commission also concludes that Copies of NUREGs may be purchased from the Commission practice has referred to the RISC–3 SSCs should not be subject to Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Washington DC deterministic approach of defining the Part 21 and § 50.55(e) reporting. A 20013–7082. Copies are also available from the events and conditions (e.g., shutdown, failure of a properly-categorized RISC– National Technical Information Service, 5285 Port normal operation, and accident) for 3 SSC should result in only a small Royal Road, Springfield, VA 22161. A copy is also which an SSC is expected to function change in risk and should not result in available for inspection and/or copying for a fee at the NRC Public Document Room, One White Flint (or not fail). Identification of design a major degradation of essential safety- North, 11555 Rockville Pike, Public File Area O1– basis events is inherently different related equipment (see NUREG–0302, F21, Rockville, MD. conceptually when compared to a risk-

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informed approach, which attempts to § 50.55(e). Failing to inform a vendor components’’ that create a ‘‘substantial identify all possible outcomes (or a that a safety-related SSC that it provided safety hazard.’’ However, in addition to reasonable surrogate) and assign a is no longer subject to Part 21 or the civil penalties authorized by Section probability to each outcome and § 50.55(e) reporting because of its 206, criminal penalties may be imposed consequence before integrating the reclassification as a RISC–3 SSC could under Section 223.b. of the AEA on an probability of the total set of outcomes. result in unnecessary reporting to the individual director, officer, or employee The Commission rejected the second licensee and the NRC. It may also result of a firm that supplies components to a approach of adopting an alternative in unnecessary expenditure of resources nuclear power plant, that knowingly definition of ‘‘basic component,’’ by the vendor in determining whether a and willfully violate regulations that because a change to the definition in problem with a supplied SSC rises to results (or could have resulted) in a § 21.3 could be misunderstood as a the level of a reportable defect or ‘‘significant impairment of a basic change to the reporting requirements for noncompliance under the existing component * * *.’’ Licensees, licensees who choose not to comply provisions of Part 21 and § 50.55(e). applicants, and vendors should note the with § 50.69. To address the potential for difference in the definition of ‘‘basic unnecessary reporting under § 50.69, the component’’ in Part 21 versus the III.4.1.2 Reporting Obligations of Commission considered including a Vendors for RISC–3 SSCs definition set forth in Section 223.b: new requirement in either § 50.69 or For the purposes of this subsection, The reporting requirements of Section Part 21 and § 50.55(e). The new the term ‘‘basic component’’ means a 206 apply to individuals, directors, and provision would require the licensee or facility structure, system, component or responsible officers of a firm construction permit holder to inform a part thereof necessary to assure— constructing, owning, operating or vendor that a safety-related SSC that it (1) The integrity of the reactor coolant supplying the basic components of any provided has been categorized as RISC– pressure boundary; NRC-licensed facility or activity. 3. After consideration, the Commission (2) The capability to shutdown the Nuclear power plant licensees and believes that it is unlikely that this facility and maintain it in a safe nuclear power plant construction permit provision would result in any great shutdown condition; or holders who are subject to reporting reduction in the potential scope of (3) The capability to prevent or under Section 206, Part 21, and reporting by vendors. The NRC does not mitigate the consequences of accidents § 50.55(e) will continue to provide for receive many Part 21 reports, so the that could result in an unplanned offsite such reporting by those entities. Section overall reporting burden to be reduced release of quantities of fission products 206 also imposes a reporting obligation may be insubstantial. Furthermore, the in excess of the limits established by the on ‘‘vendors’’ (i.e., firms who supply Commission believes that the proposal Commission. basic components to nuclear power could cause confusion, inasmuch as a The U.S. Department of Justice is plant licensees and construction permit vendor may supply many identical responsible for prosecutorial decisions holders). The Commission does not components to a licensee/holder, with involving violations of Section 223.b. intend to change the reporting some of the items intended for use in III.4.1.4 Posting Requirements obligations under Part 21 or § 50.55(e) SSCs categorized as RISC–3 and other for licensees, construction permit items intended in nonsafety-related Both AEA Section 223.b and ERA holders, or vendors with respect to applications. A vendor would have Section 206 require posting of their RISC–1 SSCs and the Commission does some difficulty in determining whether statutory requirements at the premises not intend to require reporting under the problem with the supplied SSC of all licensed facilities. This is Part 21 and § 50.55(e) for RISC–2, RISC– potentially affects the SSC categorized implemented through 10 CFR parts 19 3 or RISC–4 SSCs. as RISC–3 (as opposed to the supplied and 21. Thus, a vendor who supplied a safety- SSC used in nonsafety-related As a result of implementation of related component to a licensee that was applications). The Commission also § 50.69, rights and responsibilities of subsequently classified by the licensee believes there may be some value in licensee workers would be slightly as RISC–3 would no longer be legally notification of the NRC when defects are different. For instance, SSCs categorized obligated to comply with Part 21 or identified, as they may reveal issues as RISC–3 would no longer be subject to § 50.55(e) reporting requirements. about the quality processes or Part 21. However, RISC–1 SSCs (and However, as a practical matter that implications for basic components at ‘‘safety-related’’ SSCs not yet vendor would likely continue to comply other facilities. Finally, the NRC notes categorized per § 50.69) are subject to with Part 21 or § 50.55(e). Vendors are that the vendor has already been the Part 21 requirements. No additional informed of their Part 21 or § 50.55(e) compensated by the licensee for the responsibilities for identification or obligations as part of the contract burden associated with Part 21 and notification are involved. The supplying the basic component to the § 50.55(e) as part of the initial supporting information, such as licensee/construction permit holder. procurement process. For these reasons, procedures to be made available to Vendors supplying basic components the Commission is not adopting a workers, would need to reflect the that have been categorized as RISC–3 at provision in § 50.69, Part 21, or reduction in scope of requirements. For the time of contract ratification would § 50.55(e) requiring a licensee or the reasons already mentioned, the know that they have no Part 21 or construction permit holder to inform a Commission concludes that there would § 50.55(e) obligations. However, vendors vendor of safety-related SSCs that its be no impact on vendors with respect to that provide (or in the past provided) SSCs have been categorized as RISC–3. posting requirements in that these safety-related SSCs would not know, changes in categorization would be III.4.1.3 Criminal Liability Under absent communication from the licensee ‘‘transparent’’ to them as suppliers. or construction permit holder Section 223.b. of the AEA implementing § 50.69, whether the SSCs As discussed earlier, Section 206 of III.4.2 Section 50.49 Environmental that they provided under contract as the ERA authorizes the imposition of Qualification of Electrical Equipment safety-related are now categorized as civil penalties for a licensee’s and The general requirement that certain RISC–3, thereby removing the vendor’s vendor’s failure to report instances of SSCs be designed to be compatible with reporting obligation under Part 21 or noncompliance or defects in ‘‘basic environmental conditions associated

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with postulated accidents is contained requirements can be replaced by the caused by the lack of effective in GDC–4. Section 50.49 was written to more ‘‘high-level’’ alternative treatment maintenance. Specifically, § 50.65 provide specific programmatic requirements, which allow greater requires the performance of SSCs requirements for a qualification program flexibility to licensees in defined in § 50.65(b) to either be and documentation for electrical implementation. monitored against licensee established equipment, and thus, is a special Section 50.55a(g) incorporates by goals in a manner sufficient to provide treatment requirement. reference provisions of the ASME Code, confidence that the SSCs are capable of Section 50.49(b) imposes as endorsed by NRC, that contain the fulfilling their intended functions, or requirements on licensees to have an inservice inspection, and repair and demonstrated to be effectively environmental qualification program replacement requirements for ASME controlled through the performance of that meets the requirements contained Class 2 and Class 3 SSCs. The appropriate preventative maintenance. therein. It defines the scope of electrical Commission will not remove the repair The rule further requires that where equipment important to safety that must and replacement provisions of the performance does not match the goals, be included under the environmental ASME Code required by § 50.55a(g) for appropriate corrective action shall be qualification program. Further, this ASME Class 1 SSCs, even if they are taken. Included within the scope of regulation specifies methods to be used categorized as RISC–3, because those § 50.65(b) are SSCs that are relied upon for qualification of the equipment for SSCs constitute principal fission to remain functional during design basis identified environmental conditions and product barriers as part of the reactor events or in emergency operating documentation requirements. coolant system or containment. For procedures and nonsafety-related SSCs RISC–3 and RISC–4 SSCs are removed Class 2 and Class 3 SSCs that are shown whose failure could result in the failure from the scope of the requirements of to be of low safety significance and of a safety function or cause a reactor § 50.49 by § 50.69(b)(2)(ii). For SSCs categorized as RISC–3, the additional scram or activation of a safety-related categorized as RISC–3 or RISC–4, the assurance obtained from the specific system. Commission has concluded that for low provisions of the ASME Code is not Sections 50.65(a)(1), (a)(2), and (a)(3) safety significant SSCs, additional considered necessary. However, the impose action requirements; thus, they assurance, such as that provided by the Commission has not removed the are special treatment requirements. detailed provisions in § 50.49 for requirements for fracture toughness Upon implementation of § 50.69, a testing, documentation files and specified for ASME Class 2 and Class 3 licensee is not required to apply application of margins, are not SSCs because fracture toughness is a maintenance rule monitoring, goal necessary (for the reasons stated in significant design parameter for the setting, corrective action, alternate Section III.4.0). The requirements in material used to construct the SSC. demonstration, or periodic evaluation GDC–4 as they relate to RISC–3 and Fracture toughness is a property of the treatments required by § 50.65(a)(1), RISC–4 SSCs, and the design basis material that prevents premature failure (a)(2), and (a)(3) to RISC–3 and RISC–4 requirements for these SSCs, including of an SSC at abrupt geometry changes, SSCs. The rule includes provisions for the environmental conditions such as or at small undetected flaws. Adequate a licensee to use performance temperature and pressure, remain in fracture toughness of SSCs is necessary information to feedback into its effect. Thus, these SSCs must continue to prevent common cause failures due to processes to adjust treatment (or to remain capable of performing their design basis events, such as categorization) when results so indicate safety-related functions under design earthquakes. basis environmental conditions. Section 50.55a(h) incorporates by in § 50.69(e)(3). However, this reference the requirements in either requirement does not require the III.4.3 Section 50.55a(f), (g), and (h) IEEE 279, ‘‘Criteria for Protection specific monitoring and goal setting as Codes and Standards Systems for Nuclear Power Generating required in § 50.65, in consideration of Section 50.69(b)(2)(iv) removes RISC– Stations,’’ or IEEE 603–1991, ‘‘IEEE the lower safety significance of these 3 SSCs from the scope of certain Standard Criteria for Safety Systems for SSCs. provisions of § 50.55a, relating to Codes Nuclear Power Generating Stations.’’ RISC–1 and RISC–2 SSCs that are and Standards. The provisions being Within these IEEE standards are special currently within the scope of § 50.65(b) removed are those that relate to treatment requirements. Specifically, remain subject to existing maintenance ‘‘treatment’’ aspects, such as inspection Sections 4.3 and 4.4 of IEEE 279 and rule requirements. Furthermore, and testing, but not those pertaining to Sections 5.3 and 5.4 of IEEE 603–1991 § 50.69(e)(2) requires additional design requirements established in contain quality and environmental monitoring, evaluation and appropriate § 50.55a. Each of the subsections being qualification requirements. RISC–3 action for these SSCs. removed is discussed in the paragraphs SSCs are being removed from the scope The removal of RISC–3 and RISC–4 below. of this special treatment requirement. SSCs from the scope of requirements Section 50.55a(f) incorporates by does not include § 50.65(a)(4), which reference provisions of the ASME Code, III.4.4 Section 50.65 Monitoring the contains requirements to assess and as endorsed by NRC, that contains Effectiveness of Maintenance manage the increase in risk that may inservice testing requirements. These The Commission is removing RISC–3 result from maintenance activities. The are special treatment requirements. and RISC–4 SSCs from the scope of the requirements in § 50.65(a)(4) remain in Through this rulemaking, RISC–3 SSCs requirements of § 50.65 (except for effect. Section 50.65(a)(4) already are removed from the scope of these paragraph (a)(4)). The basis for this includes provisions by which a licensee requirements and instead are subject to removal is provided in Section III.4.0 can limit the scope of the assessment the requirements in § 50.69(d)(2). For and the following discussion. required to SSCs that a risk-informed the reasons discussed in Section III.4.0, Section 50.65, the Maintenance Rule, evaluation process has shown to be the Commission has determined that for imposes requirements for licensees to significant to public health and safety. low safety significant SSCs, it is not monitor the effectiveness of Thus, there is no need to revise the necessary to impose the specific maintenance activities for safety requirements to permit a licensee to detailed provisions of the Code, as significant plant equipment to minimize apply requirements commensurate with endorsed by NRC, and these the likelihood of failures and events SSC safety-significance.

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III.4.5 Sections 50.72 and 50.73 § 50.69(b)(1)(x) are removed from the of Appendix J within the scope of Reporting Requirements scope of the requirements for Type B § 50.69. The 1995 revision to Appendix This rule removes the requirements in and Type C testing. It is important to J primarily decreased testing § 50.72 and § 50.73 for RISC–3 and note that this removes only the frequencies, whereas risk-informing the RISC–4 SSCs. Sections 50.72 and 50.73 Appendix J leakage testing requirements scope of SSCs that are subject to from these SSCs. These SSCs must still contain requirements for licensees to Appendix J testing removes some be capable of performing their design report events involving certain SSCs. components from testing (i.e., to the basis functions (i.e., to close or isolate These reporting requirements are extent that defense-in-depth is containment). The basis for the removal special treatment requirements. The maintained in accordance with the risk- of the Appendix J leakage testing NRC requires event reports in part so informed categorization process). requirements follows. that it can follow-up on corrective One of the conditions of all operating III.4.7.1 Types of Tests Required by action for these circumstances. Through licenses for water-cooled power reactors Appendix J this rulemaking, the Commission is as specified in § 50.54(o), is that primary Appendix J testing is divided into removing RISC–3 and RISC–4 SSCs reactor containments shall meet the three types: Type A, Type B, and Type from the scope of these requirements. containment leakage test requirements C. Type A tests are intended to measure The broad applicability of information set forth in Appendix J to 10 CFR part the primary reactor containment overall obtained under § 50.72 and § 50.73 for 50. These test requirements provide for integrated leakage rate after the RISC–3 SSCs would be questionable preoperational and periodic verification containment has been completed and is because of the significant changes in by tests of the leak-tight integrity of the ready for operation and at periodic treatment allowed under § 50.69 (see the primary reactor containment, and intervals thereafter. Type B tests are similar discussion for Part 21 in Section systems and components that penetrate intended to detect local leaks and to III.4.1.1). Therefore, the Commission containment of water-cooled power measure leakage across each pressure- does not consider the burden associated reactors and establish the acceptance containing or leakage-limiting with reporting events or conditions only criteria for these tests. As such, these boundary. Primary reactor containment affecting these SSCs to be warranted. tests are special treatment requirements. penetrations required to be Type B III.4.6 10 CFR Part 50, Appendix B The purposes of the tests are to assure tested are identified in Appendix J. Quality Assurance Requirements that: Type C tests are intended to measure (1) Leakage through the primary containment isolation valve (CIV) This rule removes RISC–3 and RISC– reactor containment, or through systems leakage rates. The containment isolation 4 SSCs from the scope of requirements and components penetrating primary valves required to be Type C tested are in Appendix B to 10 CFR part 50. containment, shall not exceed allowable identified in Appendix J. Appendix B contains requirements for a leakage rate values as specified in the quality assurance program meeting technical specifications; and III.4.7.2 Reduction in Scope for specified attributes. The intent of (2) Periodic surveillance of reactor Appendix J Testing Appendix B to 10 CFR part 50, and the containment penetrations and isolation Type A Testing: The Commission is complementary regulations, is to valves is performed so that proper not changing the Type A testing provide quality assurance requirements maintenance and repairs are made requirements of Appendix J. for the design, construction, and during the service life of the Type B Testing: The Commission is operation of nuclear power plants. The containment, and systems and not changing the Type B testing quality assurance requirements of components penetrating primary requirements for air lock door seals, Appendix B are to provide adequate containment. including door operating mechanism confidence that an SSC will perform Appendix J includes two options; penetrations that are part of the satisfactorily in service. These Option A and Option B. Option A containment pressure boundary and requirements were developed to be includes prescriptive requirements doors with resilient seals or gaskets, applied to safety-related SSCs. In the while Option B identifies performance- except for seal-welded doors. However, implementation of Appendix B, a based requirements and criteria for the Commission concludes that Type B licensee is bound to detailed and preoperational and subsequent periodic testing is not necessary for other prescriptive quality requirements to leakage rate testing. A licensee may penetrations that are determined to be of apply to activities affecting those SSCs. choose either option for meeting the low safety significance and that meet As such, these requirements meet the requirements of Appendix J. one or both of the following criteria: Commission’s definition of special The discussion contained in 1. Penetrations pressurized with the treatment requirements. These Appendix J to 10 CFR part 50 can be pressure being continuously monitored. requirements are removed from divided into two categories. Parts of 2. Penetrations are 1 inch nominal application to RISC–3 and RISC–4 SSCs Appendix J contain testing size or less. because their low individual safety requirements. Other parts contain Type C Testing: The Commission significance does not warrant the level information, such as definitions or concludes that Type C testing is not of quality requirements that currently clarifications, necessary to explain the necessary for valves that are determined exist with Appendix B. testing requirements. A review of to be of low safety significance and that Appendix J did not identify any III.4.7 10 CFR Part 50, Appendix J meet one or more of the following technical requirements other than those Containment Leakage Testing criteria: describing the methods of the required 1. The valve is required to be open Section 50.69(b)(1)(x) removes a testing. Therefore, Appendix J was under accident conditions to prevent or subset of RISC–3 and RISC–4 SSCs from considered to be, in its entirety, a mitigate core damage events. the scope of the requirements in special treatment requirement. 2. The valve is normally closed and in Appendix J to 10 CFR part 50 that Although the 1995 revision to a physically closed, water-filled system. pertain to containment leakage testing. Appendix J was characterized as risk- 3. The valve is in a physically closed Specifically, RISC–3 and RISC–4 SSCs informed, the changes were not as system whose piping pressure rating that meet specified criteria in extensive as those expected by inclusion exceeds the containment design

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pressure rating and is not connected to primary reactor containment and its is bypassed. These very low probability the reactor coolant pressure boundary. penetrations. It assumes that CIVs are in scenarios dominate predicted accident 4. The valve size is 1-inch nominal their safe position. No failure is risks due to their high consequences. pipe size or less. assumed that causes the CIVs to be open The Commission examined the effect The Commission has made a when they are supposed to be closed. of containment leakage on risk in more determination that the size specified in The valve would be open if needed to detail as part of the Appendix J to 10 § 50.69(b)(x) and identified above is transmit fluid into or out of containment CFR part 50, Option B, rulemaking. The acceptable. At this time, the NRC has to mitigate an accident or closed if not results of these studies are applicable to not determined that a larger size is needed for this purpose. For purposes of this evaluation. NUREG–1493, acceptable for application to § 50.69, nor this evaluation, it is assumed that an ‘‘Performance-Based Containment Leak- has the NRC received such a proposal. open valve is capable of being closed. Test Program,’’ dated September 1995, At this time, for the Commission to The licensee or applicant implementing calculated the containment leakage entertain a larger penetration/CIV size, § 50.69 must apply treatment to RISC– necessary to cause a significant increase and subsequently revise the rule 3 CIVs that ensures with reasonable in risk and found that the leakage rate language to reflect any such review confidence that those valves are capable must typically be approximately 100 (assuming that such a size is acceptable) of performing their safety-related times the Technical Specification leak would likely cause the NRC to re-notice function to close under design basis rate, La. It is improbable that even the § 50.69 for stakeholder comment. conditions. Testing to ensure the leakage of multiple valves in the Licensees and applicants are free to capability of CIVs to reach their safe categories under consideration would pursue exemptions (to § 50.69(b)(x)) to position is not within the scope of exceed this amount. Operating this criteria if they conclude a larger Appendix J and as such is not within experience shows that most measured penetration opening can be justified for the scope of this evaluation. Therefore, leaks are much less than 100 times La. their containment design. If such a the valves addressed by this evaluation A more direct estimate of the increase proposal is ultimately reviewed and are considered to be closed, but may be in risk for the revision to Appendix J accepted, and can be applied leaking. The increase in risk due to can be obtained from the Electric Power generically, the NRC will consider a these SSCs being removed from the Research Institute (EPRI) report TR– revision to § 50.69 to reflect the new scope of Appendix J requirements is 104285, ‘‘Risk Impact Assessment of criteria. negligible. Revised Containment Leak Rate Testing The acceptability of the removal of III.4.7.3 Basis for Reduction of Scope Intervals,’’ dated August 1994. This Appendix J leakage testing for the RISC– The first category of penetrations report examined the change in the 3 CIVs is based on the assumption that baseline risk (as determined by a plant’s which are excluded from Type B testing those valves are capable of achieving the IPE risk assessment) due to extending are penetrations that are pressurized full seated position by means of the the leakage rate test intervals. For the with the pressures in the penetrations actuator. Therefore, even though a pressurized water reactor (PWR) large being continuously monitored by RISC–3 CIV might be exempt from dry containment examined in the EPRI licensees. This monitoring would detect Appendix J leakage testing, the RISC–3 report, for example, the percent increase significant leakage from the CIV must meet the treatment in baseline risk from extending the Type penetrations. The monitoring of the requirements in § 50.69(d) to provide C test interval from 2 years to 10 years pressures in the penetrations, in reasonable confidence that the CIV can was less than 0.1 percent. While this conjunction with the requirements for perform its safety function (e.g., to result was for a test interval of 10 years RISC–3 SSCs (including taking close) under design basis conditions. corrective action when an SSC fails), Because it is likely that most CIVs will vs. the current proposal to do no more ensures with reasonable confidence, be categorized as RISC–3, the licensee or Type C testing of the subject valves for without the need for Type B testing, that applicant must evaluate the proposed the life of a plant, the analysis may these penetrations are functional. change in the treatment of RISC–3 CIVs reasonably apply to this situation The second category of penetrations to ensure that defense-in-depth is because it contains several conservative excluded from Type B testing are maintained by ensuring with reasonable assumptions that offset the 10-year time penetrations that are 1 inch nominal confidence that the RISC–3 CIVs are interval. These assumptions include the size or less. These penetrations do not capable of performing their safety- following: contribute to large early releases. related functions under design basis 1. The study used leakage rate data Accordingly, the failure of such conditions. Although the licensee or from operating plants. Any leakage over penetrations does not contribute in a applicant is allowed flexibility in the plant’s administrative leakage limit significant way to safety or increased addressing this issue, the rule requires was considered a leakage failure. An risk. The Commission concludes that that the licensee or applicant ensure administrative limit is a utility’s such penetrations will not be subject to with reasonable confidence the internal limit and does not imply Type B testing. capability of RISC–3 CIVs to perform violation of any Appendix J limits. Regarding Type C containment their safety functions to maintain Therefore, the probability of a leakage leakage testing, the Commission finds defense-in-depth as discussed in RG failure is overestimated. that for the four categories of 1.174. 2. Failure of one valve to meet the containment isolation valves identified Past studies (e.g., NUREG–1150, administrative limit does not imply that in § 50.69(b)(1)(x), the removal of Type ‘‘Severe Accident Risks: An Assessment the penetration would leak because C testing requirements is reasonable for Five U.S. Nuclear Power Plants; containment penetrations typically have because even without Type C testing, Final Summary Report,’’ dated redundant isolation valves. While one the probability of significant leakage December 1990) show that the overall valve may leak, the other valve may during an accident (i.e., leakage to the reactor accident risks are not sensitive remain leak-tight. The study assumed extent that public health and safety is to variations in containment leakage that failure of one valve in a series failed affected) is small. rate. This is because reactor accident the penetration. Therefore, the Appendix J to 10 CFR part 50 deals risk is dominated by accident scenarios probability of a penetration leak is only with leakage rate testing of the in which the containment either fails or overestimated.

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3. The analysis assumed possible § 50.69 because the wording of the III.4.10.2 Section 50.36 Technical leakage of all valves subject to Type C requirements with respect to Specifications testing, not just those subject to the ‘‘qualification’’ by testing or specific relief per § 50.69. types of analysis is not present in Section 50.36 establishes operability, According to this analysis, the Appendix S. Therefore, a revision to the surveillance, limiting conditions for removal of SSCs from the scope of regulations is not necessary to permit a operation and other requirements on Appendix J requirements does not have licensee to implement means other than certain SSCs. Because this rule specifies a significant effect on risk. The NUREG– qualification testing or the specified testing and related requirements, it was 1493 analysis shows that the amount of methods to demonstrate SSC capability. considered as a candidate special leakage necessary to significantly treatment rule. However, the increase risk is two orders of magnitude III.4.9 Section 50.46a(b) Appendix B Commission concluded that it was not greater than a typical Technical Requirements for Reactor Coolant appropriate to revise § 50.36 for several Specification leakage rate limit. System Vents reasons. Therefore, the risk to the public will not Currently, the NRC staff and the The Commission established new significantly increase due to the relief industry are developing risk-informed requirements for combustible gas from the requirements of Appendix J to improvements to technical control in § 50.44 using risk insights and 10 CFR part 50. specifications. These improvements, or issued the revised rule on September 16, initiatives, are intended to maintain or III.4.8 Appendix A to 10 CFR Part 100 2003 (68 FR 54123). As part of the improve safety while reducing (and Appendix S to 10 CFR Part 50 § 50.44 rulemaking, portions of the old unnecessary burden, and to bring (Seismic Requirements)) § 50.44 were relocated to more technical specifications into congruence appropriate regulations. In particular, Section 50.69(b)(1)(xi) removes RISC– with the Commission’s other risk- requirements formerly located in § 50.44 3 and RISC–4 SSCs from the informed regulatory requirements, in requirement in Appendix A to 10 CFR were relocated to § 50.46a(b) concerning particular risk management part 100 to demonstrate that SSCs are the design of vents and associated requirements of the Maintenance Rule designed to withstand the safe controls, instruments, and power in 10 CFR 50.65(a)(4). Eight initiatives shutdown earthquake (SSE) by sources and the need for these for fundamental improvements to the qualification testing or specific components to conform to 10 CFR part Standard Technical Specifications (TS) engineering methods. GDC–2 requires 50 Appendix B. This rule removes have been proposed. Two of the that SSCs ‘‘important to safety’’ be RISC–3 SSCs from the scope of initiatives have been approved and capable of withstanding the effects of Appendix B quality assurance offered to licensees for adoption, and six natural phenomena, such as requirements, as discussed in Section are being developed by the industry and earthquakes. The requirements of 10 III.4.6. These same arguments apply to NRC staff. All of the initiatives involve, CFR part 100 pertain to reactor site the requirements in § 50.46a(b) where to some prescribed degree, assessing criteria and Appendix A addresses Appendix B is being imposed on a and managing plant risk using a seismic and geologic siting criteria used specific set of components. As such, this configuration risk management program by the Commission to evaluate the rule removes the RISC–3 and RISC–4 consistent with and in some cases suitability of plant design bases SSCs from the scope of Appendix B exceeding the requirements of the considering these characteristics. requirements contained in § 50.46a(b). Sections VI(a)(1) and (2) of Appendix A Maintenance Rule in 10 CFR 50.65. The This applies only to the requirements two approved initiatives involve: to 10 CFR part 100 address the relating to Appendix B in § 50.46a(b); engineering design for the SSE and permitting the extension of up to one the remaining requirements of § 50.46a surveillance interval of an inadvertently operating basis earthquake (OBE), remain unchanged. respectively. Section 50.69 excludes missed surveillance; and, permitting RISC–3 and RISC–4 SSCs from the III.4.10 Requirements Not Removed by plant mode transitions with inoperable scope of the requirements of Sections § 50.69(b)(1) equipment, anticipating the imminent VI(a)(1) and (2) of Appendix A to 10 return of the equipment to operability. CFR part 100, only to the extent that the In the following paragraphs, the The six initiatives under development rule requires testing and specific types Commission discusses certain rules that involve: shutting down to hot shutdown of analyses to demonstrate that safety- were considered as candidates for rather than cold shutdown to repair related SSCs are designed to withstand removal as requirements for RISC–3 and equipment; permitting the temporary the SSE and OBE. It is only these RISC–4 SSCs during development of extension of allowed outage times; aspects of Appendix A to 10 CFR part this rulemaking. These rules were permitting the determination of 100 that are considered special identified as candidate rules in SECY– surveillance frequencies through the use treatment requirements. As discussed in 99–256. They are not part of this of an approved methodology; permitting Section III.4.0 of this rulemaking, rulemaking for the reasons stated. time to restore equipment operability rather than immediately shutting down; because of the low individual safety III.4.10.1 Section 50.34 Contents of providing extended time to restore significance of the RISC–3 and RISC–4 Applications SSCs, the additional assurance provided support systems to operability; and, by qualification testing (or specific Section 50.34 identifies the required revising the scope of technical methods of analysis) is not considered information that applicants must specifications to include only on risk necessary. provide in preliminary and final safety significant systems, which would Appendix A to part 100 is applicable analysis reports. Because § 50.69 require rulemaking. for current operating reactors. The contains the documentation Improved standard TSs have already seismic design requirements are set requirements for licensees and resulted in the relocation of forth in Appendix S to part 50 for new applicants who choose to implement requirements for less important SSCs to plant applications. The NRC has § 50.69, and these requirements do not other documents. Given the ongoing determined that Appendix S does not conflict with § 50.34, it is not necessary regulatory efforts to risk-inform the TSs, need to be included within the scope of to revise § 50.34 to implement § 50.69. it was not considered necessary to scope

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§ 50.36 into § 50.69 as a special protection program. Inasmuch as the more detail in the NRC’s action on the treatment requirement. NRC has addressed fire protection in South Texas exemption request, in another rulemaking, fire protection which their request for exemption from III.4.10.3 Section 50.44 Combustible requirements were not included in the certain GDCs was denied as being Gas Control scope of the § 50.69 rulemaking. unnecessary to accomplish what was During the effort to identify candidate proposed (see Section IV.2.0). special treatment rules (refer to SECY– III.4.10.5 Section 50.59 Changes, 99–256), certain provisions within Tests, and Experiments III.4.10.7 10 CFR Part 52 Early Site § 50.44 were identified as containing There is no change is being made to Permits, Standard Design Certifications special treatment requirements in that § 50.59 as a result of § 50.69, however, and Combined Operating Licenses they specified conformance with the Commission does not believe that a Part 52 cross-references regulations Appendix B for particular design § 50.59 evaluation need be performed from other parts of Chapter 10 of the features, specified requirements for when a licensee implements § 50.69 and Code of Federal Regulations, most qualification, and related statements. thereby changes the special treatment notably Part 50. Therefore, it was For proposed § 50.69, the Commission requirements applied to RISC–3 and initially considered for inclusion in this elected not to identify § 50.44 as a RISC–4 SSCs. Accordingly, § 50.69(f) rulemaking effort. However, the special treatment rule, and instead contains language that removes the ‘‘applicability’’ paragraph (§ 50.69(b)) decided to wait on the outcome of the requirement for licensees to perform makes clear that § 50.69 is available to effort to risk inform § 50.44. The § 50.59 evaluations for the changes in applicants for, and holders of a facility Commission subsequently rebaselined special treatment that stem from § 50.69 license. Accordingly, there is no need to the requirements in § 50.44 using risk implementation. The process of revise Part 52 to assure the availability insights and issued the revised rule on adjusting treatment for RISC–3 and of § 50.69. There are issues associated September 16, 2003 (68 FR 54123). As RISC–4 SSCs does not need to be subject with Part 52 design certifications and a result, the NRC concludes that there to § 50.59 because the rulemaking these are currently excluded from the is no need to include § 50.44 within the already provides the decision process group of entities who may adopt the scope of § 50.69. However, as part of the for categorization and determination of provisions of 50.69 as discussed in September 16, 2003, rulemaking, revision to requirements resulting from Section V.3.0. portions of the old § 50.44 were the categorization. Because it is only in II.4.10.8 10 CFR Part 54 License relocated to more appropriate the area of treatment for RISC–3 and Renewal regulations. In particular, requirements RISC–4 SSCs that might be viewed as were relocated to § 50.46a(b) concerning involving a reduction in requirements, 10 CFR part 54, which sets forth the the design of vents and associated these are the only aspects for which this license renewal requirements for controls, instruments, and power rule provision applies. As required by nuclear power reactors, was identified sources and the need for these § 50.69(f), the licensee or applicant will as a candidate special treatment components to conform to 10 CFR Part be required to update the FSAR requirement in SECY–99–256. The Part 50 Appendix B. Because this aspect of appropriately to reflect incorporation of 54 aging management requirements are the relocated requirements is a special its treatment processes into the FSAR. special treatment requirements in that treatment requirement (and this same However, it is important to recognize they provide assurance that SSCs will requirement was also identified in the that changes that may affect any non- continue to meet their licensing basis old § 50.44 as being a special treatment treatment aspects of an SSC (e.g., requirements during the renewed requirement) it is now captured within changes to the SSC design basis license period. Section 54.4 explicitly the scope of § 50.69(b)(1) as discussed in functional requirements) are required to defines the scope of the license renewal Section III.4.9. be evaluated in accordance with the rule using the traditional deterministic requirements of § 50.59. The approach. Part 54 imposes aging III.4.10.4 Section 50.48 (Appendix R Commission, in developing § 50.69, is management requirements in § 54.21 on and GDC 3) Fire Protection drawing a distinction between treatment the scope of SSCs meeting § 54.4. Initially, fire protection requirements (managed through § 50.69) and design In SECY–00–0194, the NRC staff were considered to be within the scope changes (managed through other provided its preliminary view that of this rulemaking effort. There are processes such as § 50.59). As RISC–3 SSCs should not be removed augmented quality provisions applied to previously noted, this rulemaking is from the scope of Part 54 and that fire protection systems and these only risk-informing the scope of special licensees can renew their licenses in augmented quality provisions are treatment requirements. The process accordance with Part 54 by considered special treatment and requirements established in § 50.69 demonstrating that the § 50.69 treatment requirements. However, these do not extend to making changes to the provides adequate aging management in provisions are not contained in the non-treatment portion of the design accordance with § 54.21. The NRC staff Commission’s regulations and therefore basis of SSCs. suggested that no changes are necessary a revision to the rules (i.e., to scope to Part 54 to implement § 50.69 either them into § 50.69) is not required to III.4.10.6 Appendix A to 10 CFR Part before renewing a licensing or after support a change (i.e., changes to these 50 General Design Criteria (GDC) license renewal. requirements can be made without a The NRC has concluded that the GDC The goal of the license renewal revision to the rules). Additionally, the of Appendix A to 10 CFR Part 50 do not program is to establish a stable, Commission has issued a final rule that need to be revised because they specify predictable, and efficient license would allow licensees to voluntarily design requirements and do not specify renewal process. The Commission adopt National Fire Protection special treatment requirements. Because believes that a revision of Part 54 at this Association (NFPA)–805 requirements this rulemaking is not revising the non- time could have a significant effect on in lieu of other fire protection treatment portion of the design basis of the stability and consistency of the requirements. NFPA–805 sets forth the facility, the GDC should remain processes established for preparation of requirements for establishing and intact and are not within the scope of license renewal applications and for implementing a risk-informed fire § 50.69. This subject is discussed in NRC staff review. Further, as discussed

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below, the Commission believes that the when conditions warrant to assure that performance and a licensee would need requirements in Part 54 are compatible continued SSC performance is to re-visit the findings made in the with the § 50.69 approach, including consistent with the categorization categorization process or modify the use of risk information in establishing process and results. treatment for the applicable SSCs treatment (aging management) Specifically, the rule requires (§ 50.69(e)(3)). These provisions would requirements. Refer to Section V.3.0 for licensees to review the changes to the then restore the facility to the additional discussion regarding the plant, operational practices, applicable conditions that were considered in the implementation of § 50.69 for a facility plant and industry operational categorization process and would also that has already received a renewed experience, and, as appropriate, update restore the capability of the SSCs to license. Thus, Part 54 requires no the PRA and SSC categorization. The perform their functions. changes at this time. However, in the review must be performed in a timely Section 50.69(f) requires the licensee future, the Commission will consider manner but no longer than once every or applicant to document the basis for whether revisions to the scope of Part 54 two refueling outages. In addition, its categorization of SSCs before are appropriate. licensees are required to obtain removing special treatment The 1995 amendment to Part 54 sufficient information on SSC requirements. Section 50.69(f) also excluded active components to ‘‘reflect performance to verify that the requires the licensee or applicant to a greater reliance on existing licensee categorization process and its results update the final safety analysis report to programs that manage the detrimental remain valid. For RISC–1 SSCs, much of reflect which systems have been effects of aging on functionality, this information may be obtained from categorized. including those activities implemented present programs for inspection, testing, Finally, § 50.69(g) requires reporting to meet the requirements of the surveillance, and maintenance. of events or conditions that prevented, maintenance rule’’ (May 8, 1995; 60 FR However, for RISC–2 SSCs and for or would have prevented, a RISC–1 or 22471). Although § 50.69 removes RISC–1 SSCs credited for beyond design RISC–2 SSC from performing a safety RISC–3 components from the scope of basis accidents, licensees need to ensure significant function. Because the the maintenance rule requirements in that sufficient information is obtained. categorization process has determined § 50.65(a)(1), (a)(2), and (a)(3), a licensee For RISC–3 SSCs, there is a relaxation that RISC–2 SSCs are of safety is required under § 50.69(d)(2) to of the requirements for obtaining significance, NRC is interested in provide confidence in the capability of information when compared to the reports about circumstances where a RISC–3 SSCs to perform their safety- applicable special treatment safety significant function was, or related functions under design-basis requirements. However, sufficient would have been, prevented because of conditions when challenged. The SOC information still needs to be obtained. events or conditions. This reporting will for Part 54 also indicated the The rule requires considering enable NRC to be aware of situations Commission’s recognition that risk performance data, determining if impacting those functions found to be insights could be used in evaluating the adverse changes in performance have significant under § 50.69, so that NRC robustness of an aging management occurred, and making the necessary can take any actions deemed program (May 8, 1995; 60 FR 22468). adjustments so that desired performance appropriate. is achieved so that the evaluations Properly implemented, these III.4.10.9 Other Requirements conducted to meet § 50.69(c)(1)(iv) requirements ensure that the validity of In the ANPR and related documents, remain valid. The feedback and the categorization process and results the NRC staff and stakeholders adjustment process is crucial to are maintained throughout the suggested a number of other regulatory ensuring that the SSC performance is operational life of the plant. requirements that might be candidates maintained consistent with the for inclusion in § 50.69. These included III.6.0 Implementation Process categorization process and its results. Requirements § 50.12 (exemptions), § 50.54(a), (p), and Taking timely corrective action is an (q) (plan change control), and § 50.71(e) essential element for maintaining the The Commission is making the (FSAR updates). As the rulemaking validity of the categorization and provisions of § 50.69 available to both progressed, the Commission concluded treatment processes used to implement applicants for licenses and to holders of that these requirements did not need to § 50.69. For safety significant SSCs, all facility licenses for light-water reactors. be changed to allow a licensee to adopt current requirements continue to apply The rule is limited to light-water § 50.69. and, as a consequence, Appendix B reactors because the Commission does corrective action requirements are not yet have substantial experience or III.5.0 Feedback, Documentation, and applied to the design basis aspects of information sufficient to develop risk- Reporting Requirements RISC–1 SSCs to ensure that conditions informed requirements applicable to The validity of the categorization adverse to quality are corrected. For non-light water reactors. Consequently, process relies on ensuring that the both RISC–1 and RISC–2 SSCs, the technical aspects of the rule (e.g., performance and condition of SSCs requirements are included in providing reasonable confidence that continue to be maintained consistent § 50.69(e)(2) for monitoring and for risk increases are small), including the with applicable assumptions. Changes taking action when SSC performance implementation guidance, are specific in the level of treatment applied to an degrades. to light-water reactor designs. SSC might result in changes in the When a licensee or applicant Section 50.69 relies on a robust reliability of the SSCs credited in the determines that a RISC–3 SSC does not categorization process to provide categorization process. Additionally, meet its established acceptance criteria reasonable confidence that the safety plant changes, changes to operational for performance of design basis significance of SSCs is correctly practices, and plant and industry functions, the rule requires that a determined. To ensure a robust operational experience may impact licensee perform timely corrective categorization is employed, § 50.69 categorization process results. action (§ 50.69(d)(2)(ii)). Further, as part requires the categorization process to be Consequently, the rule contains of the feedback process, the review of reviewed and approved by the NRC requirements for updating the operational data may reveal before implementation of § 50.69 by categorization and treatment processes inappropriate credit for reliability or following the license amendment

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process of § 50.90 or as part of the discretionary criteria for changes to the accordance with the rule requirements license application review. While withdrawal schedule, § 50.69 does not contained in § 50.69, the Commission detailed regulatory guidance has been contain these criteria for assessing the concludes that requiring further review developed to provide guidance for adequacy of the categorization process, if NRC approval might be required for implementing categorization consistent PRA peer review results, and the basis these changes is an unnecessary burden. with the rule requirements, the for sensitivity studies. Hence, the NRC’s Thus, a licensee is permitted to make Commission concluded that a prior approval of a request to implement changes concerning treatment review and approval was still necessary § 50.69 will involve substantial requirements that might be contained in to enable the NRC staff to review the professional judgment and discretion. these documents. The Commission is scope and quality of the plant-specific The Commission does not agree with limiting this relief to changes directly PRA; taking into account industry peer NEI’s assertion that the NRC’s approval related to implementation (with respect review results. The NRC staff will also of a request to implement § 50.69 may to treatment processes). Changes that review other evaluations and be made without a license amendment affect any non-treatment aspects of an approaches that may be used, such as in accordance with the Perry decision. SSC (e.g., changes to the SSC design margins-type analyses, as well as The Commission does not believe it is basis functional requirements) are still examine any aspects of the proposed necessary to perform a prior review of required to be evaluated in accordance categorization process that are not the treatment processes to be with other regulatory requirements such consistent with the NRC’s regulatory implemented for RISC–3 SSCs in lieu of as § 50.59. This rulemaking is only risk- guidance for implementing § 50.69. the special treatment requirements. informing the scope of special treatment Thus, the rule requires that a licensee Instead, the NRC has developed § 50.69 requirements. The process and who wishes to implement § 50.69 to contain requirements that ensure the requirements established in § 50.69 do submit an application for license categorization process is sufficiently not extend to making changes to the amendment to the NRC containing robust to provide reasonable confidence non-treatment portion of the design information about the categorization that SSC safety significance is correctly basis. process and about the industry peer determined; sufficient requirements on III.7.0 Adequate Protection review process employed. An applicant RISC–3 SSCs to provide a level of would submit this information as part of assurance that these SSCs remain The Commission concludes that its license application. The NRC will capable of performing their design basis § 50.69 provides reasonable assurance of approve, by license amendment, a functions commensurate with their adequate protection of public health and request to allow a licensee to implement individual low safety significance; and safety because the principles listed § 50.69 if it is satisfied that the requirements for obtaining information below were used in the development of categorization process to be used meets concerning the performance of these § 50.69 and because these principles the requirements in § 50.69. SSCs to help enable corrective actions to will continue to be employed in the be taken before RISC–3 SSC reliability NEI submitted a paper, ‘‘License NRC’s continuing regulatory oversight degrades beyond the values used in the of § 50.69 implementation. Those Amendments: Analysis of Statutory and evaluations conducted to satisfy Legal Requirements’’ (NEI Analysis) in a principles are: § 50.69(c)(1)(iv). The NRC concludes (a) Reasonable confidence that the July 10, 2002, letter to the Director of that compliance with these net increase in plant risk is small; the Office of Nuclear Reactor Regulation requirements, in conjunction with (b) Defense-in-depth is maintained; (NRR). In this analysis, NEI contends inspection of § 50.69 licensees, is a (c) Reasonable confidence that safety that approval of a licensee’s/applicant’s sufficient level of regulatory oversight margins are maintained; and request to implement § 50.69 need not for these SSCs. (d) Monitoring and performance be accomplished by a license The Commission included assessment strategies are used. amendment. NEI essentially argues that requirements in the rule for These principles were established in the rule does not increase the licensee’s documenting categorization decisions to RG 1.174, which provided guidance on operating authority, but merely provides facilitate NRC oversight of a licensee’s an acceptable approach to risk-informed a ‘‘different means of complying with or applicant’s implementation of the decision-making consistent with the the existing regulations * * *’’ Id., p.8. alternative requirements. The rule also 1995 Commission policy on the use of The Commission disagrees with this includes provisions to have the FSAR PRA. Section 50.69 was developed to position, inasmuch as § 50.69 permits and other documents updated to reflect incorporate these principles, both to the licensee/applicant, once having the revised requirements and progress ensure consistency with Commission obtained approval from the NRC, to in implementation. These requirements policy, and to ensure that the rule depart from compliance with the will allow the NRC and other maintains adequate protection of public ‘‘special treatment’’ requirements set stakeholders to remain knowledgeable health and safety. forth in those regulations delineated in about how a licensee is implementing The following discusses how § 50.69 § 50.69. NEI also argues that the NRC’s its regulatory obligations as it meets the four criteria, and as a result, review and approval of the SSC transitions from past requirements to maintains adequate protection of public categorization process under § 50.69 is the revised requirements in § 50.69. As health and safety. analogous to the review and approval part of these provisions, the process in Cleveland Electric Commission has concluded that III.7.1 Net Increase in Risk Is Small Illuminating Co. (Perry Nuclear Power requiring evaluations under § 50.59 (for Section 50.69(c) requires the use of a Plant, Unit 1), CLI–96–13, 44 NRC 315 changes to the facility or procedures as robust, risk-informed categorization (1996), which the Commission described in the FSAR) or under process that ensures that all relevant determined did not require a license § 50.54(a) (for changes to the quality information concerning the safety amendment. Unlike the Perry case, assurance plan) is not necessary for significance of an SSC is considered by where the license already provided for those changes directly related to a competent and knowledgeable panel the possibility of material withdrawal implementation of § 50.69. For who makes the final determination of schedule changes and the governing implementation of treatment processes the safety significance of SSCs. The NRC ASTM standard set forth objective, non- for low safety significant SSCs, in review and approval of the licensee’s

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categorization process ensures that it established based upon defense-in- over time. Data that reflect operational meets the requirements of § 50.69(c) and depth considerations. Accordingly, the practices, the facility configuration, that, as a result, the correct SSC safety Commission concludes that § 50.69 plant and industry experience, and SSC significance is determined with high maintains defense-in-depth. performance are required to be fed back confidence. Correctly determining safety into the PRA and the categorization III.7.3 Safety Margins Are Maintained significance of an SSC provides process on a periodic basis and when confidence that special treatment Section 50.69(c)(1)(iv) requires that appropriate, adjustments to the requirements are only removed from evaluations be performed that provide categorization and/or treatment SSCs with low individual safety reasonable confidence that sufficient processes are required to maintain the significance and that these requirements safety margins are maintained. This is validity of these processes. In addition, continue to be satisfied for SSCs of provided by a combination of: § 50.69(g) contains requirements that safety significance. The rule requires (1) Maintaining all existing functional reports are made to NRC of conditions that the potential net increase in risk and treatment requirements on RISC–1 preventing RISC–1 and RISC–2 SSCs from implementation of § 50.69 be and RISC–2 SSCs and additionally from performing their safety significant assessed and that reasonable confidence ensuring, through the application of functions. Together, these requirements be provided that this risk change is sufficient treatment and feedback maintain the validity of the risk- small. These requirements to provide requirements, that any credit for these informed categorization and treatment reasonable confidence that the net SSCs for beyond design basis conditions processes so that the above criteria will change in risk is acceptably small as is valid and maintained; continue to be satisfied over the life of part of the categorization decision, in (2) Maintaining the design basis the facility. conjunction with the rule requirements functional requirements of the facility for maintaining design basis functions for all SSCs, including RISC–3 SSCs as III.7.5 Summary and Conclusions and the processes noted below for described in Section III.7.2; and Section § 50.69 contains requirements feedback and adjustment over time, all (3) Requiring a licensee to have that: contribute to preventing risk from reasonable confidence that the overall 1. Provide reasonable confidence that increasing beyond the ranges that the increase in risk that may result due to any net risk increase from NRC has considered to be appropriate as implementation of § 50.69 is small. implementation of its requirements is Maintaining all current requirements discussed in the RG 1.174 acceptance small; on RISC–1 and RISC–2 SSCs and guidelines. As a result, these 2. Maintain defense-in-depth; requiring sufficient treatment be applied requirements are a contributing element 3. Provide reasonable confidence that to support the credit taken for these for maintaining adequate protection of safety margins are maintained; and SSCs for beyond design basis events public health and safety. 4. Require the use of monitoring and provides assurance that the safety performance assessment strategies. III.7.2 Defense-in-Depth Is Maintained significant SSCs continue to perform as Together, these requirements result in credited in the categorization process. Section 50.69 (c)(1)(iii) requires that a rule that is consistent with the Maintaining design basis functional defense-in-depth be maintained as part Commission’s policy on the use of PRA requirements for RISC–3 SSCs ensures of the categorization requirements of and, more importantly, maintains that these SSCs continue to be designed § 50.69(c)(1) and as a result, defense-in- adequate protection of public health and to criteria that enable them to perform depth is considered explicitly in the safety. categorization process. Thus, SSCs that their design basis functions. The otherwise might be considered low reduction in treatment applied to RISC– IV. Pilot Activities safety significant, but are important to 3 SSCs results in an increased level of IV.1.0 Pilot plants defense-in-depth as discussed in the uncertainty concerning the functionality implementation guidance, will be of RISC–3 SSCs. This reduction in To aid in the development of the rule categorized as safety significant (and treatment may result in an increase in and associated implementation will remain subject to special treatment RISC–3 SSC failure rates (i.e., a guidance, several plants volunteered to requirements). For safety significant reduction in RISC–3 SSC reliability). To conduct pilot activities with the SSCs (i.e., RISC–1 and RISC–2 SSCs), all address this possibility and its objective of exercising the proposed NEI current special treatment requirements relationship to safety margin, § 50.69 implementation guidance and using the remain (i.e., the rule does not remove requires that there be reasonable feedback and lessons-learned to any of these requirements) to provide confidence that any potential increases improve both the implementation high confidence that they can perform in CDF and LERF that might stem from guidance and the governing regulatory design basis functions. Additionally, changes in RISC–3 SSC reliability due to framework. There were two separate § 50.69(d)(1) requires sufficient reduced treatment permitted by § 50.69, pilot efforts. The first pilot effort treatment be applied to support the be small. As discussed in Section III.7.4, focused on the categorization guidance credit taken for these SSCs for beyond the rule requires (through monitoring and IDP performance. This effort is design basis events. For RISC–3 SSCs, requirements) that the SSCs must be discussed in Section IV.1.1 § 50.69 imposes high-level treatment maintained so that they continue to be Categorization Pilot. The second pilot requirements that when effectively capable of performing their design basis effort is ongoing and is focused on the implemented, maintain the capability of functions. For these reasons, the § 50.69 submittal and its review. This RISC–3 SSCs to perform their design Commission concludes that § 50.69 pilot effort is discussed in Section IV.1.2 basis functions. Thus, the complement maintains sufficient safety margins. Submittal Pilot. of SSCs installed at the facility that provide defense-in-depth will continue III.7.4 Monitoring and Performance IV.1.1 Categorization Pilot to be available and capable of Assessment Strategies Are Used The categorization pilot effort was performing the functions necessary to Section 50.69(e) contains supported by three of the industry support defense-in-depth. The rule does requirements that ensure that the risk- owners groups who identified pilots for not change the design basis functional informed categorization and treatment their reactor types and participated by requirements of the facility, which were processes are updated and maintained piloting sample systems using the draft

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NEI implementation guidance. available at that time. A separate information that will be required for a Supporting the pilot effort were the categorization process was used for license amendment submittal that will Westinghouse Owners Group with lead these passive functions because it was be submitted for prior staff review and plants Wolf Creek and Surry, the BWR recognized by pilot participants that the approval for implementing § 50.69. Owners Group with lead plant Quad approach for these SSCs must be The NRC staff will use the results of Cities, and the CE Owners Group with somewhat different than for ‘‘active’’ this pilot effort to improve RG 1.201 and lead plant Palo Verde. The B&W Owners functions due to considerations such as to develop the reviewer guidance for Group did not participate, but did spatial interaction. Specifically, if a § 50.69 submittals. Industry expects to follow the pilot activities. pressure boundary SSC failed, the use the results of the pilot to develop a The NRC staff’s participation and resulting high-energy release or flooding template for a § 50.69 license principal point of interaction in the might impact other equipment in amendment submittal. pilot effort was primarily in observation physical proximity, so the process IV.2.0 South Texas Exemption as of the deliberations of the IDP. By needed to account for those effects in Proof of Concept observing the IDP, the NRC staff was addition to the significance of the SSC able to view the culmination of the that initially failed. Improvements to the A major element of the rulemaking categorization effort and gain good ASME Code Case for categorization of plan described in SECY–99–256 was the insights regarding both the robustness of piping (and related components) were review of the STPNOC exemption the categorization process in general identified and fed back into the code request. The review of the STPNOC and the IDP decision-making process development process. exemption request was viewed as a specifically. Following each of the pilot • The pilot experiences also revealed proof-of-concept prototype for this IDPs, the NRC staff developed and the intricacies of the relationship rulemaking rather than a pilot because issued a trip report containing its between ‘‘functions’’ (which play a role it preceded development of draft rule observations. in decisions on safety significance) and language or related implementation The following points set forth the ‘‘components’’ (importance measures guidance. principal lessons learned and key are associated with components and By letter dated July 13, 1999, STPNOC feedback from the NRC staff’s treatment is also generally applied on a requested approval of exemption observations of the pilot activities: component basis). Because a particular requests to enable implementation of • Potential treatment changes and component may support more than one processes for categorizing the safety their potential effects need to be function, the categorization of the significance of SSCs and treatment of understood by the IDP as part of the component needs to correspond with those SSCs consistent with its deliberations on categorization. categorization process. The STPNOC • the most significant function and means The pilots showed the importance must be provided for a licensee to process included many similar elements of documenting IDP decisions and the ‘‘map’’ the components to the functions to that described in this rulemaking, but basis for them. The rule contains a they support. with some differences. Their process requirement for the categorization basis • At each pilot, the NRC noted that identified SSCs as being either high, to be documented (and records retained) the IDP needed to include consideration medium, low or non-risk significant. in § 50.69(f). The scope of the exemptions requested • of long term containment heat removal The pilots experienced difficulty in in characterizing SSCs. The NRC included only those safety-related SSCs explicit consideration about safety considers retention of long term that have been categorized as low safety margins, especially in view of the fact containment heat removal capability significant or as non-risk significant that functionality must be retained. In important to defense-in-depth for light using STPNOC’s categorization process. the first draft rule language posted, water reactors. The licensee indicated that the requirements were included for the IDP • Finally, a number of lessons were categorization and treatment processes to consider safety margins in its learned about how to conduct the IDP would be implemented over the deliberations. On the basis of the pilot process, such as training needs, remaining licensed period of the experience, NRC adjusted its approach materials to be provided to the panel, facility. Thus, the basis for the to safety margins to include this in the etc. As a result of this feedback, NEI exemptions granted was the NRC staff’s section of the rule that requires revised NEI 00–04 (discussed in Section approval of the licensee’s categorization consideration of effects of changes in VI). process and alternative treatment treatment and the use of evaluations as elements, rather than a comprehensive the means of providing reasonable IV.1.2 Submittal Pilot review of the final categorization and confidence safety margins are The submittal pilot effort is a treatment of each SSC (review of the maintained. currently ongoing effort that focuses on process rather than the results is also • The need for a number of the § 50.69 submittal and the NRC staff’s the approach planned under the improvements to the industry review and approval of that submittal. rulemaking). As a result of discussions implementation guidance provided in This pilot effort is supported by the with the staff on a number of topics, NEI 00–04 were noted. For example, Westinghouse Owners Group with lead STPNOC submitted a revised exemption two areas for improvement were the plants Wolf Creek and Surry. The request on August 31, 2000. defense-in-depth matrix presented objectives of this pilot effort are to: On November 15, 2000, the NRC staff therein and the need for more specific • Enable the staff to develop reviewer issued a draft safety evaluation guidance on making decisions where guidance for review and approval of the (SE)(ADAMS accession number quantitative information is not § 50.69 submittal. ML003761558), based on the revised available. These lessons learned were • To acquire experience with the use exemption requests. Following the factored into the revised version of NEI of RG 1.201 and use this experience to licensee’s response to the draft SE, the 00–04. improve the guidance and address the staff prepared SECY–01–0103 dated • During the pilot activity, pressure technical interpretation/implementation June 12, 2001 (ADAMS accession boundary (‘‘passive’’) functions were issues identified in RG 1.201. number ML011560317), to inform the also categorized using the draft version • Enable industry to develop (beyond Commission of the staff’s finding of an ASME Code Case on categorization RG 1.201/NEI 00–04) the specific regarding the STPNOC exemption

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review. The staff approved the STPNOC determined to be low safety significant. V.3.0 Section 50.69(b) Applicability exemption requests by letter dated The NRC selected the terms ‘‘safety Section 50.69(b) may be voluntarily August 3, 2001 (ADAMS accession significant’’ and ‘‘low safety significant’’ implemented by: number ML011990368). as the best representations of their (1) A holder of a license to operate a The NRC has applied lessons learned meaning. Every component (if light water reactor (LWR) nuclear power from the review of the STPNOC categorized) is either safety significant plant under this part; exemption request in developing § 50.69 or low safety significant. The ‘‘low’’ (2) Holders of Part 54 renewed LWR and the description of intended category could include those SSCs that licenses; implementation of the rule in this SOC. have no safety significance, as well as (3) An applicant for a construction For example, in the STPNOC review, some SSCs that individually are not permit or operating license under this the NRC staff reviewed the safety significant, but collectively can part; and categorization process proposed by the have a significant impact on plant safety (4) An applicant for a design licensee in detail. With respect to (and hence the need for maintaining the approval, a combined license, or § 50.69, the NRC continues to require a design basis capability of these SSCs). manufacturing license under Part 52 of robust categorization with a detailed Similarly, within the category of ‘‘safety this chapter. staff review. significant,’’ some SSCs have more For current licensees, implementation The rule specifies the requirement safety significance than others; so it did will be through a license amendment as that the licensee shall ensure with not appear appropriate to call them all set forth in § 50.90. This review and reasonable confidence functionality and ‘‘high safety significant.’’ The RISC approval of the categorization process is further specifies some high-level definitions of paragraph (a) are used in a one-time process approval (i.e., the requirements for RISC–3 SSC treatment. subsequent paragraphs of § 50.69 where approval is not restricted to a set of Under § 50.69, the NRC will not review the treatment requirements are applied systems or structures, and instead can and approve licensee’s RISC–3 to SSCs as a function of RISC category. be applied to any system or structure in treatment programs. Licensees will have The definitions provided in paragraph the plant). The licensee is not required to establish appropriate performance- (a) are written in terms of SSCs that to come back to the NRC for review of based SSC treatment to maintain the perform functions. In the categorization the categorization process provided they validity of the categorization process process, it is the various functions remain within the scope of the NRC’s and its results. The rule requires that performed by systems that are assessed safety evaluation. Until the request is licensees adjust the categorization or to determine their safety significance. approved, a licensee is free to develop treatment processes, as appropriate, in For those functions of significance, the (at their own risk) the § 50.69 processes response to the SSC performance structures and components that support and perform the § 50.69 categorization. information obtained as part of the that function are then designated as However, they must continue to follow treatment process. being of that RISC category. Then, the existing requirements until approval. V. Section-by-Section Analysis treatment requirements are specified for Upon approval of the categorization the SSCs that perform those functions. process, the licensee can implement the V.1.0 Section 50.8 Information Where an SSC performs functions that results of the categorization process Collection fall in more than one category, the including the revised § 50.69 treatment This rule includes a revision to treatment requirements derive from the requirements. § 50.8(b). This section pertains to more safety significant function (i.e., if For part 54 license holders, approval by the Office of Management a component has both a RISC–1 and a implementation is the same as that for and Budget (OMB) of information RISC–3 function, it is treated as RISC– a holder of an operating license under collection requirements associated with 1). part 50, that is, to apply for an particular NRC requirements. Because The rule also contains a definition of amendment to the (renewed) license. the new § 50.69 includes information ‘‘safety-significant’’ function. NRC For the case where a licensee renewed collection requirements, a conforming selected the term ‘‘safety-significant’’ its license first and then implemented change to § 50.8(b) is necessary to list instead of ‘‘risk-significant’’ because the § 50.69, a licensee might revise some § 50.69 as one of these rules. See also categorization process employed in aging management programs for RISC–3 Section XII of the SOC for discussion § 50.69 considers both probabilistic and SSCs, consistent with the requirements about information collection deterministic information in the of § 50.69. The Commission believes requirements of § 50.69. decision process. Thus, it is more that there should be little or no accurate to represent the outcome as a impediment for doing so because the V.2.0 Section 50.69(a) Definitions determination of overall safety categorization process that allows for Section 50.69(a) provides the significance, that includes the the reduction in the special treatment definition for the four RISC categories consideration of risk, as opposed to requirements for RISC–3 components is and the definition of the term ‘‘safety characterizing the outcome as purely expected to provide an appropriate level significant function.’’ RISC–1 SSCs are ‘‘risk-significance.’’ of safety for the respective structures, safety-related SSCs (as defined in § 50.2) Those functions that are not systems and components. and that are found to be safety determined to be safety significant are In the development of § 50.69, significant (using the risk-informed considered to be low safety-significant. questions were considered regarding the categorization process being established The determination as to which impact to licensees that implement by this rule). RISC–2 SSCs are SSCs that functions are safety significant is done § 50.69 and subsequently apply to do not meet the safety-related by following the categorization process renew their license. Because part 54 definition, but determined to be safety outlined in paragraph (c), as includes scoping criteria that bring significant. RISC–3 SSCs are safety- implemented following the guidance in safety-related components within its related SSCs that are determined to be RG 1.201, ‘‘Guidelines for Categorizing scope, these components could not be low safety significant on an individual Structures, Systems, and Components in exempted without amending part 54 to basis. Finally, RISC–4 SSCs are SSCs Nuclear Power Plants According to their allow for their exclusion. However, that are not safety-related and that are Safety Significance.’’ there are still options available to

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applicants for renewal that have activities, implementation of the rule by the Commission could initiate implemented § 50.69 first. Because a holder of a manufacturing license or rulemaking to extend § 50.69 to new § 50.69 includes alternative treatment by a part 52 applicant that references design certifications after the NRC has requirements for RISC–3 components, such a design would place restrictions had some experience in this area. For an applicant may be able to provide an on the eventual operator of the facility. much the same reasons, the rule does evaluation that justifies why these The entity that actually constructs and not provide a process for changing an alternative treatment criteria operates the facility would also have to existing design certification rule to (§ 50.69(d)(2)) provide a sufficient implement § 50.69 to maintain voluntarily comply with § 50.69. In demonstration that aging management consistency with the categorization addition, a rulemaking would be of the components will be achieved process and feedback requirements. necessary to change an existing certified during the renewal period to ensure the Otherwise, the operator would be design (see Section VIII of Appendix A functionality of the structure, system, or required to meet other part 50 to 10 CFR part 52), and it is unlikely component. In addition, in the 1995 requirements, such as Appendix B or that such a change would satisfy the amendment to part 54, the Commission § 50.55a, which may not be compatible requirements of § 52.63(a)(1). A request recognized that risk insights could be with the facility as manufactured by the for a generic change to adopt § 50.69 used in evaluating the robustness of an manufacturing licensee. would not meet the special backfit aging management program. The NRC An applicant for a part 52 combined requirements of Section VIII. Therefore, staff has already received and accepted license can apply § 50.69 to a referenced the NRC would not review the request. one proposal (Arkansas Unit 1) for a design certification that did not comply Additionally, the NRC would not want risk-informed program for small-bore with § 50.69 provided the design is a to expend resources reviewing changes piping which demonstrates that risk LWR design that used the safety-related to designs that may not be referenced. arguments can be used to a degree. definition in § 50.2. An applicant who However, applicants for COLs that Adopting § 50.69 requirements for an references a certified design and wishes reference a certified design could adopt applicant for a construction permit or to implement § 50.69 would include the § 50.69 and the rule provides for that operating license under this part specified information in § 50.69(b)(2) as approach. requires that the applicant first design part of its application for a license. This The rule provisions were devised to the facility to meet the current part 50 does not mean that an applicant would provide means for licensees and requirements. Specifically, to use the actually construct the facility per all applicants for light water reactors to § 50.69 requirements requires that SSCs parts 50 and 100 requirements first, implement § 50.69. In view of some of first be classified into the traditional before applying § 50.69. Instead, the the specific provisions of the rule, for safety-related and nonsafety-related facility needs to be designed per these example, ‘‘safety-related’’ definition and classifications. This establishes the requirements, but following approval of use of CDF/LERF metrics, the design basis functional requirements for the application request under Commission is making this rule the facility, which as previously stated, § 50.69(b)(4), RISC–3 SSCs could be applicable only to light-water reactor § 50.69 is not changing. Once the SSC procured per the requirements of designs. categorization has been done consistent § 50.69(d). V.3.1 Section 50.69(b)(1) Removal of with the safety-related definition in The final rule excludes applicants for RISC–3 and RISC–4 SSCs From the § 50.2, then § 50.69 can be used to standard design certifications from the Scope of Treatment Requirements categorize SSCs into RISC–1, RISC–2, group of entities who may take RISC–3, and RISC–4 and the alternative advantage of the provisions of § 50.69. Section 50.69 (b)(1) lists the specific treatment requirements of § 50.69 In considering whether to extend the special treatment requirements from implemented. A new applicant who applicability of § 50.69 to design whose scope the RISC–3 and RISC–4 chooses to adopt the § 50.69 certifications, the Commission SSCs are being removed through the requirements, must seek approval of the identified a number of difficult issues application of § 50.69. In this paragraph, categorization process as part of its which would have to be resolved to each regulatory requirement (or portions license application and, following NRC support such an extension. For example, thereof) removed by this rulemaking is approval, would be able to procure it is unclear whether the dynamic listed in a separate item, numbered from RISC–3 SSCs to § 50.69 requirements process of recategorizing SSCs under § 50.69(b)(1)(i) through (b)(1)(xi). The before initial plant operation. § 50.69 would be inconsistent with the basis for removal of these requirements An applicant for a design approval, a special change restrictions in § 52.63(a), was discussed in Section III.4. These combined license, or manufacturing thereby requiring the inclusion of a requirements are being removed due to license under part 52 of this chapter special change provision in the the low safety significance of RISC–3 may adopt § 50.69 requirements. An individual design certification rule. and RISC–4 SSCs as determined by an applicant for a design approval, or Inasmuch as the proposed rule did not approved risk-informed categorization manufacturing license would follow a include a provision that would have process meeting the requirements of process very similar (from the allowed design certification applicants § 50.69(c). The special treatment standpoint of § 50.69) to that described to use § 50.69, the NRC has not had the requirements for RISC–3 SSCs are above for an applicant for a construction benefit of the views of the industry and replaced with the high-level, permit or operating license under part the public on these issues. Moreover, performance-based requirements in 50 (i.e., SSCs must first be classified into the industry has not expressed any § 50.69(d)(2) that require the licensee to the traditional safety-related and interest in submitting a design provide reasonable confidence that nonsafety-related classifications which certification using the principles of RISC–3 SSCs will continue to be establishes the design basis functional § 50.69. Accordingly, the final rule does capable of performing their safety- requirements for the facility and then not address the issue of applying § 50.69 related functions under design basis § 50.69 can be used to categorize SSCs to new design certifications; issues conditions. These performance-based into RISC–1, RISC–2, RISC–3, and associated with the application of RISC–3 requirements in paragraph (d)(2) RISC–4). Because § 50.69 includes § 50.69 to design certification are discussed below in greater detail. elements of procurement and rulemaking can be addressed on a case- Note that special treatment installation, as well as inservice by-case basis as necessary. In the future, requirements are not removed from any

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SSCs until the NRC approves the have used for the methods other than a ‘‘safety significant’’ classification. Thus, categorization process and a licensee (or PRA to determine their adequacy for an applicant would first need to design applicant) has categorized those SSCs this application. the facility to meet applicable Part 50 using the requirements of § 50.69(c) to Further, the licensee or applicant is design requirements and then apply the provide the documented basis for the required to include information about requirements of § 50.69. This decision that they are of low safety the evaluations they intend to conduct information must be submitted in significance. to provide reasonable confidence that addition to other technical information the potential increase in risk would be necessary to meet § 50.34. The NRC will V.3.2 Section 50.69 (b)(2) small. This includes any risk sensitivity provide its approval of implementation Application Process study for RISC–3 SSCs, including the of § 50.69, if it concludes that the rule Section 50.69(b)(2) requires a licensee basis for whatever change in reliability requirements are met, as part of its who voluntarily seeks to implement is being assumed for these analyses. A action on the application. § 50.69 to submit an application for a licensee must provide sufficient license amendment under § 50.90 that information to the NRC, describing the V.4.0 Section 50.69(c) Categorization contains the following information: risk sensitivity study and other Process Requirements (i) A description of the categorization evaluations and the basis for their Section 50.69(c) establishes the process that meets the requirements of acceptability as appropriately requirements for the risk-informed § 50.69(c). representing the potential increase in categorization process including (ii) A description of the measures risk from implementation of the requirements for the supporting PRA. taken to assure that the quality and level requirements in this rule. Licensees or applicants who wish to of detail of the systematic processes that RISC–3 SSCs are defined as having adopt the requirements of § 50.69 will evaluate the plant for internal and low individual safety significance under need to make a submittal (per external events during normal § 50.69. Licensees and applicants must § 50.69(b)(2) or § 50.69(b)(4) operation, low power, and shutdown implement effective treatment, respectively) that discusses how their (including the plant-specific PRA, consisting of, at a minimum, inspection, proposed categorization process, margins-type approaches, or other testing, and corrective action, to supporting PRA, and evaluations meet systematic evaluation techniques used maintain RISC–3 SSC functionality as the § 50.69(c) requirements. As to evaluate severe accident required by § 50.69(d)(2). This treatment described in Section III.2.0, these vulnerabilities) are adequate for the need not be described to the NRC as part requirements are intended to ensure that categorization of SSCs. of the § 50.69 submittal as provided in the risk-informed § 50.69 categorization (iii) Results of the PRA review process § 50.69(b)(2). process determines the appropriate to be conducted to meet § 50.69(c)(1)(i). safety significance of SSCs with high (iv) A description of, and basis for V.3.3 Section 50.69 (b)(3) Approval confidence. The introductory paragraph acceptability of, the evaluations to be for Licensees of § 50.69(c) states that SSCs must be conducted to satisfy § 50.69(c)(1)(iv). Section 50.69(b)(3) provides that the categorized as RISC–1, RISC–2, RISC–3, The evaluations must include the effects Commission will approve a licensee’s or RISC–4 by a process that determines of common cause interaction implementation of this section by whether the SSC performs one or more susceptibility, and the potential impacts license amendment if it determines that safety significant functions and from known degradation mechanisms the proposed process for categorization identifies those functions. for both active and passive functions, of RISC–1, RISC–2, RISC–3, and RISC– and address internally and externally 4 SSCs satisfies the requirements of V.4.1 Section 50.69(c)(1)(i) Results initiated events and plant operating § 50.69(c). and Insights From a Plant-Specific modes (e.g., full power and shutdown The NRC will review the description Probabilistic Risk Assessment conditions). of the categorization process set forth in Section 50.69(c)(1)(i) contains the Regarding the categorization process the application to confirm that it requirements for the PRA itself, and description, the NRC expects that most contains the elements required by the how it is to be used in the categorization licensees and applicants will commit to rule. The NRC will also review the process. The PRA must have sufficient RG 1.201 which endorses NEI 00–04, information provided about the plant- capability and quality to support the with some conditions and exceptions. If specific PRA, including the peer review categorization of the SSCs. Section a licensee or applicant wishes to use a process to which it was subjected, and V.4.1.1 discusses these requirements in different approach, the submittal must methods other than a PRA relied upon more detail. The PRA and associated provide a sufficient description of how in the categorization process. The NRC sensitivity studies are used primarily in the categorization would be conducted. intends to use review guidance the categorization of the SSCs as to their As part of the submittal, a licensee or (discussed in more detail in Section VI) safety significance as discussed in applicant is to describe the measures for this purpose. The NRC will approve Section V.4.1.2, and the PRA is also they have taken to assure that the plant- the licensee’s use of § 50.69 by issuing used to perform evaluations to assess specific PRA, as well as other methods a license amendment. the potential risk impact of the used, are adequate for application to proposed change in treatment of the V.3.4 Section 50.69(b)(4) Process for § 50.69. The measures described include RISC–3 SSCs, as discussed in Section Applicants such items as any peer reviews V.4.4. performed, any actions taken to address Section 50.69(b)(4) requires that an peer review findings that are important applicant for a license, standard design V.4.1.1 Scope, Capability, and Quality to categorization, and any efforts to approval, or manufacturing license that of the PRA To Support the compare the plant-specific PRA to the chooses to implement § 50.69 must Categorization Process ASME PRA standard. The NRC has submit the information listed in As required in § 50.69(c)(1)(ii), developed reviewer guidance applicable § 50.69(b)(2) as part of its application. initiating events from sources both to these submittals that is described in The rule is structured to transition from internal and external to the plant and Section VI. The licensee or applicant the ‘‘safety-related’’ classification (and for all modes of operation, including must also describe what measures they related treatment requirements) to a low power and shutdown modes, must

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be considered when performing the will focus on the use of importance determination of SSC safety significance categorization of SSCs. It is recognized measures because these are the most should take into account the effects of that few licensees have fully developed commonly used methods to identify all associated basic PRA events (such as PRA models that cover such a scope. safety significance of SSCs using a PRA, failure to start and failure to run), However, as a minimum, the PRA to be for example, in the implementation of including indirect contributions through used to support categorization under § 50.65). The determination of the safety associated common cause failure (CCF) § 50.69(c)(1) must model internal significance of SSCs by importance events. initiating events occurring at full power measures is also important because it Because importance measures are operations. The PRA will have to be can identify potential risk outliers and typically evaluated on the basis of able to calculate both core damage therefore, changes that exacerbate these individual events, single-event frequency and large early release outliers can be avoided; and it can importance measures have the potential frequency to meet the requirement in facilitate IDP deliberations of SSCs that to dismiss all elements of a system or § 50.69(c)(iv). The PRA must reasonably are not modeled in the PRA, for group despite the system or group represent the current configuration and example, events from the ranked list can having a high importance when taken as operating practices at the plant to meet be used as surrogates for those SSCs that a whole. Conversely, there may be § 50.69(c)(1)(ii). The PRA model should are not modeled or are only implicitly grounds for screening groups of SSCs, be of sufficient technical quality and modeled in the PRA. owing to the unimportance of the level of detail to support the For SSCs modeled in the PRA, SSC systems of which they are elements. categorization process. This means that importance is effectively determined One approach around this problem is to it represents a coherent, integrated (see § 50.69(c)(1)(iv)) based on both CDF first determine the importance of system model, and has sufficient detail to and LERF. Importance measures should functions performed by the selected support the categorization of SSCs into be chosen so that the IDP can be plant systems. If necessary, each the safety significant and low safety provided with information on the component in a system is then significant categories. relative contribution of an SSC to total evaluated to identify the system The quality and scope of the plant- risk. Examples of importance measures function(s) supported by that specific PRA will be assessed by the that can accomplish this are: the component. SSCs may be initially NRC taking into account appropriate Fussell-Vesely (F–V) importance and assigned the same category as the most standards and peer review results. The the Risk Reduction Worth (RRW) limiting system function they support. NRC has prepared a regulatory guide importance. Importance measures System operating configuration, (RG 1.200) on determining the technical should also be used to provide the IDP reliability history, recovery time adequacy of PRA results for risk- with information on the margin available, and other factors can then be informed activities. As one step in the available should an SSC fail to function. considered when evaluating the effect assurance of technical quality, the PRA The Risk Achievement Worth (RAW) on categorization from an SSC’s must have been subjected to a peer importance and the Birnbaum redundancy or diversity. The primary review process assessed against a importance are example measures that consideration in the process is whether standard or set of acceptance criteria are suitable for this purpose. the failure of an SSC will fail or severely that is endorsed by the NRC. Thus, the In choosing screening criteria to be degrade the safety function. If the NRC will rely on the NEI Peer Review used with the PRA importance answer is no, then a licensee may factor Process, as modified in the NRC’s measures, it should be noted that into the categorization the SSC’s approval, or the ASME/ANS Peer importance measures do not directly redundancy, as long as the SSC’s Review Process, as modified in the relate to changes in the absolute value reliability credited in the categorization NRC’s approval both of which are (or of risk. Therefore, the final criteria for process and that of its redundant will be) documented in RG 1.200. As categorizing SSCs into the safety counterpart(s) have been taken into discussed in Section VI, NRC has also significant and the low safety significant account. developed review guidelines for categories must be based on an When the PRA used in the importance considering the sufficiency of a PRA assessment of the potential overall analyses includes models for external that was subjected to the NEI peer impact of SSC categorization and a initiating events and/or plant operating review process for this application in comparison of this potential impact to modes other than full power, caution § 50.69. This guidance was developed the acceptance guidelines for changes in should be used when considering the based on an earlier draft version of NEI CDF and LERF. However, typically in results of the importance calculations. 00–04 and could be useful in ensuring the initial screening stages, an SSC with The PRA models for external initiating the adequacy of the PRA for this F–V < 0.005 based on CDF and LERF, events (e.g., events initiated by fires or application. The submittal requirements and RAW < 2 based on CDF and LERF earthquakes) and for low power and listed in § 50.69(b)(2) include a can be considered as potentially low shutdown plant operating modes may requirement to provide information safety-significant. In addition, the be more conservative and have a greater about the quality of the PRA analysis appropriateness of the importance degree of uncertainty than for internal and other supporting analyses and about measures in specifically addressing SSC initiating events. Use of conservative the peer review results. CCF contributions and associated models can influence the calculation of screening criteria should be considered. importance measures by moving more V.4.1.2 Risk Categorization Process IDP consideration of § 50.69(c)(1)(ii), SSCs into the low safety significance Based on PRA Information (c)(1)(iii), and (c)(1)(iv) should be category. Therefore, when PRA models For SSCs modeled in the PRA, the carried out to confirm the low safety for external event initiators and for the typical categorization process relies on significance of these SSCs. low power and shutdown modes of the use of importance measures as a In determining the safety significance operation are available and used, the screening method to assign the of SSCs, consideration should be given importance measures should be preliminary safety significance of SSCs. to the potential for the multiple failure evaluated for each analysis separately (Other methodologies such as success modes for the SSC. PRA basic events and collectively, and the results of these path identification methodologies can represent specific failure events and evaluations should be provided to the also be used, however, this discussion failure modes of SSCs. The IDP.

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As part of the demonstration of PRA PRA, including both design basis and a barrier (including fission product adequacy, the sensitivity of SSC severe accident functions. For various retention and removal) is not importance to uncertainties in the reasons, many SSCs in the plant will not significantly degraded when SSCs that parameter values for component be modeled explicitly in the PRA. support the functions are moved to availability/reliability, human error Therefore, the categorization process RISC–3 (e.g., containment isolation or probabilities, and CCF probabilities must determine the safety significance containment heat removal systems). The should be evaluated. Results of these of these SSCs by other means. Because concepts used to address defense-in- sensitivity analyses should be provided importance measures are not available depth for functions required to prevent to the IDP. The following should be for use as screening, other criteria or core damage may also be useful in considered in IDP deliberations on the considerations must be used by the IDP addressing issues related to those SSCs sensitivity study results: to determine the significance. Guidance that are required to preserve long-term (1) The change in event importance on how these deliberations should be containment integrity. Where a licensee when the parameter value is varied over conducted is included in the NRC categorizes containment isolation valves its uncertainty range for the event regulatory guidance associated with this or penetrations as RISC–3, the licensee probability can in some cases provide rule, and in the industry guidance. should address the impact of the change SSC categorization results that are Section 50.69(c)(1)(ii) requires that all in treatment to ensure that defense-in- different. Therefore, in considering the aspects of the processes used to depth continues to be satisfied. Where sensitivity of component categorization categorize SSC must ‘‘reasonably the impact of changes in treatment does to uncertainties in the parameter values, reflect’’ the current plant configuration, not support the reliability assumptions the IDP should ensure that SSC operating practices, and applicable in the categorization process, the categorization is not affected by data operating experience. The terminology, licensee should resolve this situation by uncertainties. ‘‘reasonably reflect,’’ was selected to adjustments to the categorization (2) PRAs typically model recovery allow for appropriate PRA modeling and process assumptions or treatment of the actions, especially for dominant also to make clear that the PRA and component. accident sequences. Estimating the categorization processes do not need to V.4.4 Section 50.69(c)(1)(iv) Include success probability for the recovery be instantaneously revised when a plant actions involves a certain degree of Evaluations To Provide Reasonable change occurs (see also requirements in Confidence That Sufficient Safety subjectivity. The concerns in this case § 50.69(e)(1) on PRA updating). stem from situations where very high Margins Are Maintained and That Any success probabilities are assigned to a V.4.3 Section 50.69(c)(1)(iii) Potential Increases in CDF and LERF sequence, resulting in related Maintaining Defense-in-Depth Resulting From Changes in Treatment components being ranked as low risk Section 50.69(c)(1)(iii) requires that Permitted by Implementation of contributors. Furthermore, it is not the categorization process maintain § 50.69(b)(1) and § 50.69(d)(2) Are Small desirable for the categorization of SSCs defense-in-depth. To satisfy this Section 50.69(c)(1)(iv) specifies that to be impacted by recovery actions that requirement, when categorizing SSCs as the categorization process include sometimes are only modeled for the low safety significant, the IDP must evaluations to provide reasonable dominant scenarios. Sensitivity analyses demonstrate that defense-in-depth is confidence that as a result of should be used to show how the SSC maintained. Defense-in-depth is implementation of revised treatment categorization would change if recovery adequate if the overall redundancy and permitted for RISC–3 SSCs, sufficient actions were removed. The IDP should diversity among the plant’s systems and safety margins are maintained and any ensure that the categorization is not barriers is sufficient to ensure the risk potential increases in CDF and LERF are unduly impacted by the modeling of acceptance guidelines discussed in small. Safety margins can be maintained recovery actions. Section V.4.4 are met, and that: if the licensee maintains the (3) CCFs are modeled in PRAs to • Reasonable balance is preserved functionality of the SSCs following account for dependent failures of among prevention of core damage, implementation of the revised redundant components within a system. prevention of containment failure or requirements and if periodic inspection, CCF probabilities can impact PRA bypass, and mitigation of consequences testing, and corrective action activities results by enhancing or obscuring the of an offsite release. are adequate to prevent, detect and importance of components. A • System redundancy, independence, correct significant SSC performance and component may be ranked as a high risk and diversity is preserved reliability degradation. Later sections of contributor mainly because of its commensurate with the expected this SOC provide discussion on the contribution to CCFs or a component frequency of challenges, consequences treatment the licensee will implement to may be ranked as a low risk contributor of failure of the system, and associated ensure with reasonable confidence that mainly because it has negligible or no uncertainties in determining these RISC–3 SSCs remain capable of contribution to CCFs. The IDP should parameters. performing their safety functions under ensure that the categorization is not • There is no over-reliance on design basis conditions. The unduly impacted by the modeling of programmatic activities and operator requirements of the rule to show that CCFs. The IDP should also be aware that actions to compensate for weaknesses in sufficient safety margins are maintained removing or relaxing requirements may the plant design. and that potential increases in risk are increase the CCF contribution, thereby • Potential for common cause failures acceptably small are discussed below. changing the risk impact of an SSC. is taken into account. As part of their submittal, a licensee The Commission’s position is that the or applicant is to describe the V.4.2 Section 50.69(c)(1)(ii) containment and its systems are evaluations to be conducted for Integrated Assessment of SSC Function important in the preservation of purposes of providing reasonable Importance defense-in-depth (in terms of both large confidence that there would be no more Section 50.69(c)(1)(ii) contains early and large late releases). Therefore, than an acceptably small (potential) requirements for an integrated, as part of meeting the defense-in-depth increase in risk. For SSCs included in systematic process to address events principle, a licensee should demonstrate the PRA, the Commission expects a risk including those not modeled in the that the function of the containment as sensitivity study (evaluation) to be

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performed to provide a basis for steam tunnel) would be more § 50.69 application. This is consistent concluding that if the reliability of these susceptible to failure because of grease with the guidance in Section 2.2.4 of RG RISC–3 SSCs should collectively degradation if they were not regularly 1.174. It should be noted that this degrade because of the changes in maintained and tested. However, not all allowed increase shall be applied to the treatment, the potential risk increase MOVs, even if they have the same overall categorization process, even for would be small. Satisfying the rule design and are identical in other those licensees that will implement requirement that the risk increase is respects, will be exposed to the same § 50.69 in a phased manner. acceptably small presumes that the environment. Therefore, the other If a PRA model does not exist for the increase in failure rates credited in the MOVs may not be as susceptible to external initiating events or the low PRA risk sensitivity study bounds any failure as those in the steam tunnel and power and shutdown operating modes, reasonable estimate of the increase that less frequent maintenance and testing justification should be provided, on the may be expected as a result of the would be acceptable. While it may be basis of bounding analyses or qualitative changes in treatment; also considering simpler to increase the unreliability or considerations, that the effect on risk the feedback and corrective action unavailability of all the RISC–3 SSCs by (from the unmodeled events or modes of aspects of the rule. a certain bounding factor to demonstrate operation) is not significant and that the The categorization process that the change in risk is acceptably total effect on risk from modeled and encompasses both active and passive small, this example suggests that it may unmodeled events and modes of functions of SSCs. Section also be appropriate to use different operation is small, consistent with 50.69(b)(2)(iv) includes the requirement factors for different groups of SSCs Section 2.2.4 of RG 1.174. that the change-in-risk evaluations depending on the impact of reducing V.4.5 Section 50.69(c)(1)(v) System performed to satisfy § 50.69(c)(1)(iv) treatment on those SSCs. or Structure Level Review must address potential impacts from Section 50.69(c)(1)(iv) requires known degradation mechanisms on both Section 50.69(c)(1)(v) specifies that reasonable confidence that the increase active and passive functions. The the categorization be done at the system in the overall plant CDF and LERF manner of addressing these potential or structure level; not for selected resulting from potential decreases in the impacts may be either qualitative or components within a system. A licensee reliability of RISC–3 SSCs as a result of quantitative and may rely on the or applicant is allowed to implement the changes in treatment, be small. The maintenance of current programs that § 50.69 for a subset of the plant systems rule further requires the licensee or address these degradation mechanisms and structures (i.e., partial (e.g., microbiologically-induced applicant to describe the evaluations to implementation) and to phase in corrosion, flow-assisted corrosion) and/ be performed to meet this requirement. implementation over time. However, the or may incorporate existing risk- As presented in RG 1.174, the NRC implementation, including the informed approaches (e.g., risk- considers small changes to be relative categorization process, must address informed inservice inspection). and to depend on the current plant CDF entire systems or structures; not selected One mechanism that could lead to and LERF (hence we also refer to components within a system or large increases in CDF/LERF is ‘‘acceptably small’’ changes in other structure. Note that this requirement extensive, across system common cause portions of this notice since small can should be understood to exclude entire failures. These CCFs could occur where be different for different plants with support systems (e.g., if system A is different baseline levels of risk). For categorized as RISC–3, but is dependent the mechanisms that lead to failure, in ¥ the absence of special treatment, are plants with total baseline CDF of 10 4 on system B components which in turn per year or less, small means CDF have been categorized as RISC–1, then sufficiently rapidly developing or are ¥ not self-revealing that there would be increases of up to 10 5 per year and for system A is understood not to include plants with total baseline CDF greater the system B components and is not to few opportunities for early detection ¥ than 10 4 per year, small means CDF be categorized as RISC–1). This required and corrective action. Thus, when ¥ deciding how much to assume that SSC increases of up to 10 6 per year. scope ensures that all safety functions reliability might change, the applicant However, if there is an indication that associated with a system or structure are or licensee is expected to consider the CDF may be considerably higher properly identified and evaluated when ¥ potential effects of common-cause than 10 4 per year, the focus of the determining the safety significance of interaction susceptibility, including licensee should be on finding ways to individual components within a system cross-system interactions and potential decrease rather than increase CDF and or structure and that the entire set of impacts from known degradation the licensee may be required to present components that comprise a system or mechanisms; while also considering the arguments as to why steps should not be structure are considered and addressed. feedback and corrective actions aspects taken to reduce CDF for the reduction in V.4.6 Section 50.69(c)(2) Use of of the rule. special treatment requirements to be Those aspects of treatment that are considered. For plants with total Integrated Decision-Making Panel necessary to prevent SSC degradation or baseline LERF of 10¥5 per year or less, Section 50.69(c)(2) sets forth the failure from known degradation small LERF increases are considered to requirements for using an IDP to make mechanisms, to the extent that the be up to 10¥6 per year, and for plants the determination of safety significance, results of the evaluations are with total baseline LERF greater than and for the composition of the IDP. The invalidated, must be retained. 10¥5 per year, small LERF increases are fundamental requirement for the Identifying those aspects will involve an considered to be up to 10¥7 per year. categorization process (as stated in understanding of what the degradation However, if there is an indication that § 50.69(c)(1)(ii)) is that it include use of mechanisms are and what elements of the baseline CDF or LERF may be an integrated systematic process. The treatment are sufficient to prevent the considerably higher than 10¥4 or 10¥5, determination of safety significance of degradation. respectively, the licensee either must SSCs is to be performed as part of an The treatment for all RISC–3 SSCs find ways to reduce risk and present the integrated decision-making process. By may not be the same. As an example, arguments to the staff before ‘‘integrated decision-making process,’’ motor operated valves (MOVs) operating implementation of § 50.69, otherwise it the Commission means a process that in a severe environment (e.g., in the is likely that the staff will reject the integrates both risk insights and

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traditional engineering insights. In philosophy and requirements to beyond design basis functions and to categorizing SSCs as low safety- maintain defense-in-depth. RISC–2 SSCs. significant, defense-in-depth must be The licensee or applicant (through the The performance conditions for maintained (per § 50.69(c)(1)(iii)) and IDP) shall document its decision criteria beyond design basis capabilities of there must be reasonable confidence for categorizing SSCs as safety RISC–1 SSCs credited in the PRA are that sufficient safety margin is significant or low safety significant not subject to the requirements of 10 maintained by showing that any pursuant to § 50.69(f)(1). Decisions of CFR Part 50, Appendix B. However, increases in risk are small per the IDP should be arrived at by plant SSCs credited for beyond design § 50.69(c)(1)(iv). To account for each of consensus. Differing opinions should be basis capabilities must have a valid these factors and to account for risk documented and resolved, if possible. If technical basis for the credit (i.e., the insights not found in the plant-specific a resolution cannot be achieved failure rate/probability of the SSC PRA, § 50.69(c)(2) requires that the final concerning the safety significance of an performing the beyond design basis categorization of each SSC be performed SSC, then the SSC should be classified function) given in the PRA. Further, the using an integrated decision-making as safety-significant. SSC categorization basis for this credit should already be panel (IDP). A structured and systematic shall be revisited by the licensee or established and documented in the PRA process using documented criteria must applicant (through the IDP) when the supporting documentation so this be used to guide the decision-making PRA is updated or when the other should not be an additional burden for process. Categorization is an iterative criteria used by the IDP are affected by licensees to capture and implement. If process based on expert judgment to changes in plant operational data or an existing technical basis does not exist integrate the qualitative and quantitative changes in plant design or plant or is insufficient to support the credit elements that impact SSC safety procedures. Requirements for PRA taken for beyond design basis capability significance. The insights and varied updating are contained in § 50.69(e)(1). (e.g., the supporting test program does not test the SSC at the beyond design experience of IDP members are relied on V.5.0 Section 50.69(d) Treatment basis conditions), the licensee or to ensure that the final result reflects a Requirements for Structures, Systems, applicant is required by § 50.69(d)(1) to comprehensive and justifiable and Components judgment. develop a technical basis for the credit Treatment requirements applicable to taken in the PRA potentially including The panel must be composed of RISC–1, RISC–2, and RISC–3 SSCs are experienced personnel who possess a treatment program for the SSC that specified in § 50.69(d). Any regulatory validates the capability credited. diverse knowledge and insights in plant requirements applicable to RISC–1, For SSCs categorized as RISC–1 or design and operation and who are RISC–2, RISC–3, and RISC–4 SSCs not RISC–2, all existing applicable capable in the use of deterministic removed by § 50.69(b)(1) continue to requirements continue to apply (i.e., no knowledge and risk insights in making apply. special treatment requirements are SSC classifications. The NRC places removed by § 50.69). This rule does not significant reliance on the capability of V.5.1 Section 50.69(d)(1) RISC–1 and RISC–2 Treatment require licensees to evaluate the a licensee to implement a robust effectiveness of special treatment categorization process that relies heavily Section 50.69(d)(1) requires that a requirements for RISC–1 SSCs to ensure on the skills, knowledge, and licensee or applicant ensure that RISC– that they are capable of performing their experience of the people that implement 1 and RISC–2 SSCs perform their design basis functions. The special the process, in particular on the functions consistent with the treatment requirements in other NRC qualifications of the members of the categorization process assumptions by regulations address the design basis IDP. The IDP must be composed of a evaluating treatment being applied to capability of RISC–1 SSCs. group of individuals who collectively these SSCs to ensure that it supports the The categorization process will result have expertise in plant operation, key assumptions in the categorization in a number of safety-related SSCs being design (mechanical and electrical) process that relate to their assumed determined to be of low safety engineering, system engineering, safety performance. This rule language means significance (i.e., RISC–3) and subject to analysis, and probabilistic risk that the licensee or applicant must reduced treatment. This determination assessment. At least three members of evaluate the treatment associated with of low safety significance will implicitly the IDP should have a minimum of five those key assumptions in the PRA that take credit for the performance years experience at the plant, and there relate to performance of particular SSCs. capability of other SSCs in the PRA, should be at least one member of the For example, if a relief valve was being some, or all of which, may not be IDP who has worked on the modeling credited with capability to relieve water included in the scope of the licensee’s and updating of the plant-specific PRA (as opposed to its design condition of categorization process (due to the for a minimum of three years. steam), such an evaluation would look allowance for licensees to selectively The IDP should be trained in the at whether the component has been implement the rule and to phase that specific technical aspects and determined to be able to perform as implementation over time). To maintain requirements related to the assumed. the validity of the categorization categorization process. Training should Because RISC–1 and RISC–2 SSCs are process, and more importantly to address at a minimum the purpose of the safety significant SSCs and their maintain any potential risk increase as the categorization; present treatment performance as credited in the PRA is small, it is necessary to maintain the requirements for SSCs including important to maintaining an acceptable ‘‘credited’’ SSCs per § 50.69, and this requirements for design basis events; level of plant risk, given that special means the application of § 50.69(d)(1) PRA fundamentals; details of the plant- treatment requirements are being and § 50.69(e)(2) requirements. specific PRA including the modeling, removed from RISC–3 SSCs, it is a key scope, and key assumptions, the and necessary part of § 50.69 to ensure V.5.2 Section 50.69(d)(2) RISC–3 interpretation of risk importance these SSCs can perform as credited in Treatment measures, and the role of sensitivity the PRA. However, the requirements in Section 50.69(d)(2) requires that the studies and the change-in-risk § 50.69(d)(1) do not extend special licensee or applicant must ensure with evaluations; and the defense-in-depth treatment requirements to RISC–1 reasonable confidence that RISC–3 SSCs

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remain capable of performing their specific engineering methods in conditions were not previously part of safety-related functions under design accordance with the requirements stated its design basis. basis conditions, including seismic in 10 CFR part 100, Appendix A. A Section 50.69(d)(2) requires that the conditions and environmental licensee or applicant who adopts the treatment of RISC–3 SSCs be consistent conditions and effects throughout their rule would no longer be required to with the categorization process. This service life. By ‘‘reasonable confidence’’, meet certain requirements in Appendix rule language means that, when the Commission means that the licensee A to part 100, Sections VI(a)(1) and establishing the treatment for RISC–3 or applicant is required to provide a VI(a)(2), to the extent that those SSCs, the licensee or applicant must ‘‘reasonable confidence’’ level with requirements have been interpreted as take into account the assumptions in the regard to maintaining the capability of mandating qualification testing and categorization process regarding the RISC–3 safety-related functions. As specific engineering methods to design basis capability and reliability of indicated previously in this notice, demonstrate that RISC–3 SSCs are RISC–3 SSCs to perform their safety- ‘‘reasonable confidence’’ is a level of designed to withstand the Safe related functions throughout their confidence that is both less than that Shutdown Earthquake and Operating service life. The evaluation by the associated with RISC–1 SSCs which are Basis Earthquakes. The rule does not licensee or applicant of the consistency subject to all the special treatment remove the design requirements related of the treatment of RISC–3 SSCs with requirements, and consistent with their to the capability of RISC–3 SSCs to the categorization process may be individual low safety significance. The remain functional considering Safe qualitative so long as it provides term ‘‘ensure’’ is intended to convey the Shutdown Earthquake and Operating reasonable confidence of the design Commission’s determination that the Basis Earthquake seismic loads, basis capability of RISC–3 SSCs, based licensee is under a legally-binding including applicable concurrent loads. on plant-specific and industry-wide regulatory requirement to provide the The rule does not change the design operational experience and vendor requisite ‘‘reasonable confidence.’’ input earthquake loads (magnitude of information. In establishing treatment Although § 50.69(b)(1) removes for the loads and number of events) or the for RISC–3 SSCs, the licensee or RISC–3 SSCs the environmental required load combinations used in the applicant is responsible for addressing qualification requirements of § 50.49, it design of RISC–3 SSCs. For example, for applicable vendor recommendations does not eliminate the requirements in the replacement of an existing safety- and operational experience such that 10 CFR part 50, Appendix A, ‘‘General related SSC that is subsequently the treatment established for RISC–3 Design Criteria for Nuclear Power categorized as RISC–3, the same seismic SSCs provides reasonable confidence for Plants,’’ that electric equipment design loads and load combinations design basis capability. For example, important to safety be capable of would still apply. The rule would operational experience might be performing their intended functions permit the licensee or applicant to select described in NRC information notices or under the applicable environmental a technically defensible method to show identified in responses to NRC bulletins, conditions. For example, GDC–4 of 10 that RISC–3 SSCs will remain functional generic letters, or other licensee CFR part 50, Appendix A, requires that when subject to design earthquake commitment documents. The treatment SSCs important to safety be designed to loads. Several public comments on the applied to RISC–3 SSCs must also accommodate the effects of, and to be proposed rule supported the use of support the assumptions used in compatible with, the environmental earthquake experience data as a method justifying the removal of requirements applicable to those SSCs. For example, conditions and effects associated with to demonstrate SSCs will remain normal operation, maintenance, testing, where a licensee or applicant intends as functional during earthquakes. If the and postulated accidents. To satisfy the part of implementing § 50.69 to licensee or applicant chooses to use provisions of GDC–4 of 10 CFR part 50, eliminate leakage testing required in 10 only earthquake experience data to Appendix A, the licensee or applicant CFR Part 50, Appendix J, for demonstrate that the SSC will perform must address environmental conditions containment isolation valves, the its safety-related function, with no such as temperature, pressure, treatment applied to those valves must further engineering evaluation, then the humidity, chemical effects, radiation, support the assumption that they are earthquake experience data must and submergence; and environmental capable of closing under design basis envelope the SSC design basis, effects such as aging and synergisms. In conditions. including the number of earthquake accordance with § 50.69(d)(2), the Some public comments on the licensee or applicant must design events and the design load proposed rule suggested that a reference electric equipment important to safety combinations. Additionally, if the SSC to general industrial practices would be so they are capable of performing their is required to function during or after sufficient to satisfy the requirements for intended functions under applicable the earthquake, the experience data the treatment for RISC–3 SSCs. environmental conditions and effects would need to contain explicit However, as described in NUREG/CR– throughout their service life. If RISC–3 information that the SSC actually 6752, ‘‘A Comparative Analysis of electrical equipment is relied on to functioned during or after the design Special Treatment Requirements for perform its safety-related function basis earthquake events as required by Systems, Structures, and Components beyond its design life, § 50.69(d)(2) the SSC design basis. The successful (SSCs) of Nuclear Power Plants with requires the licensee or applicant to performance of an SSC after the Commercial Requirements of Non- have a basis for the continued capability earthquake event does not demonstrate Nuclear Power Plants,’’ significant of the equipment under adverse it would have functioned during the variation exists in the application of environmental conditions and effects. event. Implementation of § 50.69 does industrial practices at nuclear power Under § 50.69, RISC–3 SSCs would not change the seismic design basis for plants. Hence, a simple reference to continue to be required to function USI A–46 facilities and, therefore, does these practices does not provide a basis under design basis seismic conditions not impose additional requirements on to satisfy the rule’s requirements. To (such as design load combinations of these facilities. satisfy the requirement that the normal and accident conditions with Section 50.69(d)(2) should not be treatment of RISC–3 SSCs be consistent earthquake motions), but would not be interpreted to extend or expand design with the categorization process, the required to be qualified by testing or basis conditions to SSCs where such licensee or applicant must establish

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treatment that provides reasonable no additional basis to support it, would these pumps and valves will be capable confidence SSCs perform their safety- necessarily bound the potential change of performing their safety-related related functions under design basis in risk that could result due to functions under design basis conditions. conditions and is consistent with the implementation of § 50.69. There is a To determine that the pump or valve assumptions in the categorization potential that risk due to will remain capable of performing its process (e.g., reliability levels). The implementation of § 50.69 could safety-related function, the licensee or licensee or applicant must either increase as a result of the reduction in applicant will need to obtain sufficient establish treatment that provides this treatment due to common-cause operational information or performance level of reliability or use consensus interactions or degradation, and this data to provide with reasonable impact might not be uniform across the standards that provide a proven level of confidence that the RISC–3 pumps and reliability based on experience. In using population of RISC–3 SSCs. For valves will be capable of performing consensus standards, the licensee or example, if a licensee were to simply applicant must note that combining or eliminate maintenance, testing, or their safety-related functions if called omitting provisions of standards might lubrication of pumps or valves, it could upon to function under operational or result in ineffective implementation of significantly impact performance of design basis conditions over the interval § 50.69 by causing RISC–3 SSCs to be those specific components and the between periodic testing or inspections. incapable of performing their design impact might exceed the cumulative In addition, the operational information basis safety functions. The NRC impact of individually reducing the and performance data must be sufficient considers the ASME code cases reliability of all RISC–3 SSCs by a few to satisfy the requirements of endorsed in § 50.55a and listed in RG percent or less. Public comments on the § 50.69(d)(2)(i) for use in identifying the 1.84, 1.147, and 1.192 to be one proposed rule indicated that cross- need for corrective action under acceptable method of establishing system common-cause interactions and § 50.69(d)(2)(ii) and in providing treatment of RISC–3 SSCs, where degradation mechanisms are typically information for feedback to the applicable, in that those applicable addressed through the treatment categorization and treatment processes endorsed code cases adjust treatment processes applied to plant equipment, under § 50.69(e)(3). based on the safety significance of the rather than being addressed in the In some cases, a licensee or applicant components. categorization process. In satisfying the Under § 50.69, most special treatment rule, the licensee or applicant must implementing § 50.69 might apply more requirements will be removed from consider potential common-cause rigorous test methods than previously RISC–3 SSCs, which will typically interactions and degradation applied to satisfy the ASME Code comprise a large percentage of safety- mechanisms in establishing treatment inservice testing provisions because related SSCs in a nuclear power plant. for RISC–3 SSCs so there is a reasonable § 50.69 does not specify restrictive time These special treatment requirements basis to support the assumptions made limits on test intervals that were will be replaced with the high-level for the risk sensitivity study. provided in the ASME Code. As a result, treatment requirements in § 50.69(d)(2) § 50.69 allows significant flexibility by V.5.2.1 Section 50.69(d)(2)(i) that will allow significant reduction in the licensee or applicant in verifying the Inspection and Testing the treatment applied to RISC–3 SSCs. design basis capability of their safety- This reduction in treatment can Section 50.69(d)(2)(i) requires the related SSCs categorized as RISC–3. introduce common-cause concerns and licensee to conduct periodic inspection However, the licensee or applicant weaken defenses against them. and testing activities to determine needs to consider the lessons learned Therefore, § 50.69(d)(2) requires that whether RISC–3 SSCs will remain over the last 20 years regarding SSC inspection, testing and corrective action capable of performing their safety- performance in establishing the related functions under design basis be provided for RISC–3 SSCs. The treatment for RISC–3 SSCs. Contrary to conditions. inspection and testing requirement in suggestions in some public comments § 50.69(d)(2)(i) is to provide sufficient The prescriptive special treatment on the proposed rule, operating performance data for RISC–3 SSCs to requirements in §§ 50.55a and 50.65 for experience and research does not determine if the reduction in treatment inspection, testing, and surveillance has adversely affected their design basis have been removed for RISC–3 SSCs. In support an assumption that exercising a capability and to provide reasonable lieu of those prescriptive requirements, valve or pump will provide reasonable confidence that the SSC can perform its the final rule requires the licensee or confidence of design-basis capability in safety function throughout their service applicant to implement inspection and that such exercising will not detect life. The corrective action requirement testing of RISC–3 SSCs sufficient to service-induced aging or degradation in § 50.69(d)(2)(ii) is to address SSC provide reasonable confidence that that could prevent the component from failures and provide reasonable RISC–3 SSCs remain capable of performing its design basis functions in confidence in avoiding future problems. performing their safety-related functions the future, and therefore is insufficient These requirements are necessary to under design basis conditions by itself to satisfy § 50.69(d)(2)(i). The provide reasonable confidence that throughout their service life. The licensee or applicant may develop the RISC–3 safety related functional licensee or applicant may apply type and frequency of tests or capability is maintained and thereby industrial practices for the treatment of inspections for RISC–3 pumps and avoid adverse impacts on the reliability RISC–3 SSCs if those practices maintain valves provided they are sufficient to and availability of multiple RISC–3 the capability of the RISC–3 SSCs to conclude that the pump or valve will SSCs, which could reduce plant safety perform their design-basis safety perform its safety-related function beyond the categorization process functions. throughout the service life. The With respect to RISC–3 pumps and assumptions or results and invalidate provisions for risk-informed inspection valves, the rule language in the risk sensitivity results. and testing in applicable ASME code A licensee or applicant may not § 50.69(d)(2)(i) means that the licensee simply assume that a sensitivity study or applicant must implement periodic cases (as incorporated in § 50.55a) that increases the failure probability for testing or inspection sufficient to would constitute one effective approach all RISC–3 SSCs simultaneously, with provide reasonable confidence that for satisfying the § 50.69 requirements.

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V.5.2.2 Section 50.69(d)(2)(ii) treatment processes in the early phases some, or all of which, may not be Corrective Action Process of implementing the rule. If plant included in the scope of the licensee’s Section 50.69(d)(2)(ii) requires that changes, operational practices, or categorization process (due to the conditions that would prevent a RISC– operational experience would result in allowance for licensees to selectively 3 SSC from performing its safety-related a significant adverse impact on plant implement the rule and to phase that functions under design basis conditions safety or public health and safety, the implementation over time). To maintain must be corrected in a timely manner. licensee or applicant must update the the validity of the categorization In the case of significant conditions categorization or treatment processes in process, and more importantly to adverse to quality, the rule requires that a timely manner without waiting for the maintain any potential risk increase as measures be taken to provide reasonable two refueling outage schedule. The small, it is necessary to maintain the information collected under ‘‘credited’’ SSCs per § 50.69. confidence that the cause of the § 50.69(e)(2) and (e)(3) would be among In § 50.69(e)(3) the rule requires the condition is determined and corrective the information used to determine the licensee or applicant to consider the action taken to preclude repetition. need for updating the categorization or performance data collected in Significant conditions adverse to quality treatment processes in a timely manner § 50.69(d)(2)(i) for RISC–3 SSCs to include common-cause concerns for required under § 50.69(e)(1). The plant determine whether there are any multiple RISC–3 SSCs or concerns and industry operational experience adverse changes in performance such related to the validity of the referred to in § 50.69(e)(1) includes the that the SSC unreliability values categorization process or its results. For data collected under § 50.69(e)(3) for approach or exceed the values used in example, if measuring and test RISC–3 SSCs. In addition to the periodic the evaluations conducted to meet equipment is found to be in error or updating of the quantitative reliability § 50.69(c)(iv) and to make adjustments defective, the licensee or applicant will information, the feedback of plant as necessary to either the categorization be responsible for determining the operational experience is intended to or treatment processes so the functionality of safety-related SSCs include qualitative information on the categorization process and results are checked using that equipment to performance of plant SSCs obtained maintained valid. Based on the review prevent the occurrence of common- through the corrective action program of this information, if SSC reliability cause problems that might invalidate and processes as well as from applicable degrades so as not to support the the categorization process assumptions vendor recommendations and categorization process assumptions, the and results. Effective implementation of operational experience. For example, licensee or applicant must adjust the the corrective action process would lessons learned from operational treatment to improve SSC reliability or include timely response to information experience might be described in NRC make appropriate changes to the from plant SSCs, overall plant information notices or implemented in categorization of SSCs. operations, and industry generic response to NRC bulletins or generic V.7.0 Section 50.69(f) Program activities that might reveal performance letters. The evaluation of the concerns for RISC–3 SSCs on both an Documentation and Change Control and categorization process includes Records individual and common-cause basis. verifying the continued validity of the Contrary to some public comments on risk sensitivity study and the associated Section 50.69(f) contains the proposed rule, the corrective action SSC performance assumptions. administrative requirements for keeping process alone is insufficient to monitor Section 50.69(e)(2) requires the information current, handling planned the effects of reduced treatment on licensee or applicant to monitor the changes to programs and processes, and RISC–3 SSCs, and therefore the performance of RISC–1 and RISC–2 records. Each requirement is discussed Commission has incorporated feedback SSCs and make adjustments as below. requirements into § 50.69. necessary to either the categorization Section 50.69(f)(1) states that the (i.e., by moving other RISC–3 or RISC– licensee or applicant shall document the V.6.0 Section 50.69(e) Feedback and basis for categorization of SSCs in Process Adjustment 4 SSCs back into RISC–1 or RISC–2 until the change in risk is acceptably accordance with this section before Section 50.69(e)(1) requires the small) or treatment processes so the removing any requirements. The licensee or applicant to review changes categorization process and results are documentation must address why a to the plant, operational practices, maintained valid. To meet this component was determined to be either applicable plant and industry requirement, the licensee or applicant safety significant or low safety operational experience and, as must monitor all unavailabilities and significant based upon the requirements appropriate, update the PRA and SSC functional failures so they can in § 50.69(c). categorization and treatment processes, determine when adjustments to the Section 50.69(f)(2) specifies that the in a timely manner, but no longer than categorization or treatment processes are licensee must update its FSAR to reflect every two refueling outages for RISC–1, needed. The licensee or applicant will which systems have been categorized RISC–2, RISC–3, and RISC–4 SSCs. The also need to monitor SSCs that are using the provisions of § 50.69. Systems date the NRC grants the license credited in the PRA for performing that are categorized by § 50.69 will have amendment to implement 10 CFR 50.69 beyond design basis functions (if their treatment revised consistent with begins the updating interval and applicable) that are not necessarily the RISC category into which the SSC is provides a recognizable date for the included in the scope of an existing categorized and the associated treatment periodic updating of the categorization maintenance rule program. requirements of § 50.69(d). This and treatment processes. Depending on The categorization process will result provision is included to maintain clear the timing of license amendment in a number of safety-related SSCs being information, at a minimum level of issuance (for example, just before a determined to be of low safety detail, about which requirements a refueling outage), the licensee or significance (i.e., RISC–3) and subject to licensee is satisfying. However, detailed applicant might have minimal plant reduced treatment. This determination information about particular SSCs is not changes, operational practices, or of low safety significance will implicitly required to be submitted to the NRC. For operational experience to review in take credit for the performance an applicant, this updating would be updating the categorization and capability of other SSCs in the PRA, expected to be either part of the original

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application or as a supplement to the process and intends to impose a license inspections will focus on the FSAR under § 50.34(b). For licensees, condition upon which the implementation of the categorization the updating must be in accordance categorization process approval is based process approved as part of the NRC with the provisions of § 50.71(e). to control categorization process review of the § 50.69 license Once the NRC has completed its changes. The license condition will amendment request. The sample review of a § 50.69 application, the require the licensee to notify the NRC in inspections will also evaluate the licensee can adjust its treatment advance of implementing changes with treatment established under § 50.69 processes provided that the respect to specific aspects of the with primary attention directed to requirements of § 50.69 are met. NRC categorization process. With experience programmatic and common-cause does not plan to perform a pre- in the application of § 50.69, the NRC issues; including those associated with implementation review of the revised might modify the rule to specify generic known degradation mechanisms. The treatment requirements under criteria for the control of changes to the inspections might help provide § 50.69(d). However, the Commission categorization process during operating experience information on recognizes that existing information in implementation of the rule. RISC–3 SSCs that can also be provided the quality assurance (QA) plan or in No explicit requirements are included to other licensees. the FSAR may need to be revised to in § 50.69 for the period for retention of reflect the changes to treatment that are records. The rule specifies only a few VI. Guidance made as a result of implementation of specific types of records that must be VI.1 Regulatory Guide and § 50.69. Any revisions to these prepared (e.g., those for the basis for Implementation Guidance for § 50.69 documents are to be submitted to NRC categorization in § 50.69(f)(1)). In NEI submitted a proposed in accordance with the existing accordance with § 50.71(c), these requirements of § 50.54(a)(2) and records are to be maintained until the implementation guide for this § 50.71(e), respectively. Commission terminates the facility rulemaking in the form of NEI 00–04, Section 50.69(f)(3) specifies that for license. ‘‘10 CFR 50.69 SSC Categorization initial implementation of the rule, Guideline’’. As part of the effort to changes to the FSAR for implementation V.8.0 Section 50.69(g) Reporting develop the rule, the NRC staff reviewed of this rule need not include a Section 50.69(g) provides a new drafts of this document and in addition, supporting § 50.59 evaluation of reporting requirement applicable to NEI 00–04 was used in the pilot changes directly related to events or conditions that prevented, or programs discussed earlier. The implementation. Future changes to the would have prevented, a RISC–1 or objective of the staff’s review was to treatment processes and procedures for RISC–2 SSC from performing a safety determine the acceptability of the § 50.69 implementation may be made, significant function. Most events proposed implementing guidance, with provided the requirements of the rule involving these SSCs will meet existing the intent that the NEI guidance could and § 50.59 continue to be met. While § 50.72 and § 50.73 reporting criteria. be endorsed in an NRC regulatory guide. the licensee is to update its programs to However, it is possible for events and The revision of NEI 00–04 submitted on reflect implementation of § 50.69, the conditions to arise that impact whether April 14, 2004 forms the basis for the Commission concluded that no RISC–1 or RISC–2 SSCs would perform NRC RG ‘‘Guidelines for Categorizing additional review under § 50.59 is beyond design basis functions Structures, Systems and Components in necessary for such changes to these consistent with the performance Nuclear Power Plants According to parts of the FSAR that might occur. capability credited in the categorization Their Safety Significance.’’ Availability Section 50.69(f)(4) specifies that for process. This reporting requirement is of this document is noted in Section IX. initial implementation of the rule, intended to capture these situations. The NRC staff’s review of NEI 00–04 changes to the quality assurance plan The reporting requirement is contained resulted in several areas where the staff directly related to implementation of in § 50.69, rather than as a revision of finds it necessary to identify this rule need not be considered a § 50.73, so that its applicability only to clarifications, limitations, and reduction in commitment for the those facilities that have implemented conditions to the NEI guidance or to purposes of § 50.54(a). Future changes § 50.69 is clear. The existing reporting include further guidance to supplement to the treatment processes and requirements in § 50.72 and § 50.73 are the document, as it is currently written. procedures for § 50.69 implementation removed for RISC–3 (and RISC–4) SSCs These clarifications, limitations, and may also be made, provided the under § 50.69(b)(vii) and (viii). conditions, and the reasons therefore, requirements of the rule and § 50.54(a) are set forth in Section C of RG 1.201. continue to be met. While the licensee V.9.0 Inspection of 10 CFR 50.69 These issues are best resolved by testing is to update its programs to reflect Implementation the guide against actual applications. implementation of § 50.69, the The NRC will review and update, as Therefore, this RG is being issued for Commission concluded that no appropriate, the current inspection trial use. This RG does not establish any additional NRC staff review under procedures under the NRC Reactor final staff positions, and may be revised § 50.54(a) is necessary for changes to Oversight Process to incorporate in response to experience with its use. these parts of the QA plan. inspection guidance for monitoring the As such, this trial regulatory guide does No specific change control process is implementation of § 50.69 at nuclear not establish a staff position for being established for the categorization power plants. The NRC intends to purposes of the Backfit Rule, 10 CFR process outlined by § 50.69(c). At this conduct sample inspections of plants 50.109, and any changes to this RG prior time, the NRC is unable to determine implementing § 50.69 in a manner that to staff adoption in final form will not generic criteria for the control of is sensitive to conditions that could be considered to be backfits as defined changes to the categorization process significantly increase risk. These sample in 10 CFR 50.109(a)(1). This will ensure during its implementation that could be inspections are intended to gather that the lessons learned from regulatory included in § 50.69. As a result, the NRC information that will enable the NRC to review of pilot and follow-on will review and approve a license assess whether modifications are applications are adequately addressed amendment submittal containing the needed to the ongoing baseline in this document and that the guidance licensee or applicant’s categorization inspection program. The sample is sufficient to enhance regulatory

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stability in the review, approval, and which NEI responded by letter dated program elements in this category are implementation in the use of PRAs and January 18, 2001. By letter dated April those that relate directly to areas of their results in the risk informed 2, 2002 (ADAMS accession number regulation reserved to the NRC by the categorization process required by 10 ML020930632), the NRC staff sent to AEA or the provisions of Title 10 of the CFR 50.69. NEI, draft staff review guidance that was Code of Federal Regulations and, The NRC staff and NEI continue to developed as a result of its review of although an Agreement State may not interact on the implementation NEI 00–02, for intended use for § 50.69 adopt program elements reserved to guidance. Consequently, it is expected applications. NRC, it may wish to inform its licensees that NEI will submit an improved The draft staff review guidance is for of certain requirements via a mechanism revision to NEI 00–04 that will enable a focused review of the plant-specific that is consistent with the particular the NRC to issue a RG with fewer PRA based on a review of NEI 00–02 State’s administrative procedure laws, clarifications, limitations, and and NEI 00–04. To reach the conclusion but does not confer regulatory authority conditions, and as a consequence, the that the PRA results support the on the State. NRC is delaying issuance of the RG. proposed categorization, the review IX. Availability of Documents guidance is structured to lead the staff VI.2 Review Guidance Concerning reviewer to look for evidence that the The NRC is making the documents PRA Quality and Peer Review impact of a given peer review issue on identified below available to interested RG 1.200, ‘‘An Approach for PRA results has been adequately persons through one or more of the Determining the Technical Adequacy of addressed in the peer review report and, following methods as indicated. Probabilistic Risk Assessment Results when necessary, has been identified for Public Document Room (PDR). The for Risk-Informed Activities,’’ provides consideration by the IDP, or to request NRC Public Document Room is located guidance on the NRC position on further information from the licensee. at 11555 Rockville Pike, Rockville, voluntary consensus standards for PRA Maryland. (in particular on the ASME standard for VII. Criminal Penalties Rulemaking Web site (Web). The internal events PRAs) and associated For the purposes of Section 223 of the NRC’s interactive rulemaking Web site industry PRA documents (e.g., NEI 00– Atomic Energy Act, as amended, the is located at http://ruleforum.llnl.gov. 02, ‘‘Probabilistic Risk Assessment Peer Commission is issuing a rule to add These documents may be viewed and Review Process Guideline’’). Further, § 50.69 under one or more of Sections downloaded electronically via this Web this guide will be modified to address 161b, 161i, or 161o of the AEA. Willful site. PRA standards on fire, external events, violations of the rule are subject to NRC’s Public Electronic Reading and low power and shutdown modes, as criminal enforcement. Criminal Room (PERR). The NRC’s public they become available. The NRC has penalties, as they apply to regulations in electronic reading room is located at also developed a draft supporting Part 50, are discussed in § 50.111. http://www.nrc.gov/reading-rm.html. Standard Review Plan, SRP 19.1, to Note: Public access to documents, provide guidance to the staff on how to VIII. Compatibility of Agreement State Regulations including access via ADAMS and the PDR, determine if a PRA providing results has been temporarily suspended so that being used in a decision is technically Under the ‘‘Policy Statement on security reviews of publicly available acceptable. Adequacy and Compatibility of documents may be performed and potentially In a letter dated April 24, 2000, NEI Agreement States Programs,’’ approved sensitive information removed. However, requested that the NRC staff review the by the Commission on June 20, 1997, access to the documents identified in this rule continues to be available through the suitability of the peer review process and published in the Federal Register rulemaking web site at http:// described in NEI 00–02 to address PRA (62 FR 46517, September 3, 1997), this ruleforum.llnl.gov, which was not affected by quality issues for this application. NRC rule is classified as compatibility the ADAMS shutdown. Please check with the issued a request for additional ‘‘NRC.’’ Compatibility is not required for listed NRC contact concerning any issues information on September 19, 2000, to Category ‘‘NRC’’ regulations. The NRC related to document availability.

Document PDR Web PERR

Response to Public Comments ...... X X ML042990011 Environmental Assessment ...... X X ML041040236 Regulatory Analysis ...... X X ML041000474 Industry Implementation Guidance ...... X X ML041120253 Regulatory Guide ...... X X ML041340087 Final Rule SRM ...... X X ML042810516 SRM on PRA Quality ...... X X ML033520457

X. Voluntary Consensus Standards standard (RG 1.201, June 2004). The informed code cases by the ASME on Commission notes the development of categorization of certain components, The National Technology Transfer voluntary consensus standards on PRAs, particularly with respect to pressure and Advancement Act of 1995, Pub. L. such as an ASME Standard on boundary considerations. RG 1.201 104–113, requires that Federal agencies Probabilistic Risk Assessment for explicitly notes these code cases and use technical standards that are Nuclear Power Plant Applications. RG that they could be proposed by a developed or adopted by voluntary 1.201 and RG 1.200 (PRA Technical licensee or applicant as part of the consensus standards bodies unless Adequacy) discuss how this standard means for satisfying the rule using such a standard is inconsistent could be used for the purpose of the requirements. The government with applicable law or is otherwise internal events, full-power PRA. standards allow use of these voluntary impractical. In this rule, the NRC is In addition, the Commission consensus standards, but do not require using the following Government-unique acknowledges development of risk-

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their use. The Commission does not average 1,032 hours per response, XVI. Small Business Regulatory believe that these other standards are including the time for reviewing Enforcement Fairness Act sufficient to provide the overall instructions, searching existing data In accordance with the Small construct for the alternative approach to sources, gathering and maintaining the Business Regulatory Enforcement categorization and treatment of SSCs data needed, and completing and Fairness Act of 1996, the NRC has that is the goal of this rulemaking. For reviewing the information collection. determined that this action is not a example, the current standards do not Send comments on any aspect of these major rule and has verified this address all types of components that information collections, including determination with the Office of might be categorized, nor do standards suggestions for reducing the burden, to Information and Regulatory Affairs of currently exist for addressing the PRA the Records and FOIA/Privacy Services OMB. requirements for all initiating events Branch (T–5 F52), U.S. Nuclear and modes of operation. Additionally, Regulatory Commission, Washington, List of Subjects in 10 CFR Part 50 there are no voluntary consensus DC 20555–0001, or by Internet Antitrust, Classified information, standards that can address other parts of electronic mail to Criminal penalties, Fire protection, the approach laid out such as [email protected]; and to the Intergovernmental relations, Nuclear determining the basis for the Desk Officer, John A. Asalone, Office of power plants and reactors, Radiation evaluations to show an acceptably small Information and Regulatory Affairs, protection, Reactor siting criteria, increase in risk. The NRC is not aware NEOB–10202, (3150–0011), Office of Reporting and recordkeeping of any voluntary consensus standard Management and Budget, Washington, requirements. that could be used instead of the DC 20503. You may also e-mail ■ For the reasons set out in the preamble Government-unique standards. comments to _ _ and under the authority of the Atomic XI. Finding of No Significant John A. [email protected] or Energy Act of 1954, as amended; the Environmental Impact: Environmental comment by telephone at (202) 395– Energy Reorganization Act of 1974, as Assessment: Availability 4650. amended; and 5 U.S.C. 552 and 553, the The Commission has determined Public Protection Notification NRC is adopting the following under the National Environmental The NRC may not conduct or sponsor, amendments to 10 CFR part 50. Policy Act of 1969, as amended, and the and a person is not required to respond PART 50—DOMESTIC LICENSING OF Commission’s regulations in Subpart A to, a request for information or an of 10 CFR part 51, that this rule is not PRODUCTION AND UTILIZATION information collection requirement FACILITIES a major Federal action significantly unless the requesting document affecting the quality of the human displays a currently valid OMB control ■ 1. The authority citation for Part 50 environment and, therefore, an number. continues to read as follows: environmental impact statement is not XIII. Regulatory Analysis Authority: Secs. 102, 103, 104, 105, 161, required. As set forth in the final 182, 183, 186, 189, 68 Stat. 936, 937, 938, environmental assessment, this action The Commission has prepared a 948, 953, 954, 955, 956, as amended, sec. will not have a significant regulatory analysis on this regulation. 234, 83 Stat. 444, as amended (42 U.S.C. environmental impact principally The analysis examines the costs and 2132, 2133, 2134, 2135, 2201, 2232, 2233, because it is structured to maintain the benefits of the alternatives considered 2236, 2239, 2282); secs. 201, as amended, design basis functional requirements for by the Commission. Availability of the 202, 206, 88 Stat.1242, as amended, 1244, the SSCs in the facility, because the rule regulatory analysis is provided in 1246 (42 U.S.C. 5841, 5842, 5846); See 1704, contains feedback and process Section IX. 112 Stat. 2750 (44 U.S.C. 3504 note). adjustment requirements to maintain Section 50.7 also issued under Pub. L. 95– XIV. Regulatory Flexibility Certification 601, sec. 10, 92 Stat. (42 U.S.C. 5841). the validity of the categorization process In accordance with the Regulatory Sections 50.10 also issued under secs. 101, over time, and because the standards 185, 68 Stat. 955, as amended (42 U.S.C. and requirements applicable to Flexibility Act (5 U.S.C. 605(b)), the 2131, 2235); sec. 102, Pub. L. 91–190, 83 Stat. radiological releases and effluents are Commission certifies that this rule does 853 (42 U.S.C. 4332). Sections 50.13, not affected by this rulemaking. not have a significant economic impact 50.54(dd), and 50.103 also issued under sec. The NRC requested public comments on a substantial number of small 108, 68 Stat. 939, as amended (42 U.S.C. on any aspect of the environmental entities. This rule affects only the 2138). Sections 50.23, 50.35, 50.55, and 50.56 assessment. No public comments were licensing and operation of nuclear also issued under sec. 185, 68 Stat. 955 (42 received. The NRC requested the views power plants. The companies that own U.S.C. 2235). Sections 50.33a, 50.55a, and of the States on the environmental these plants do not fall within the scope Appendix Q also issued under sec. 102, Pub. of the definition of ‘‘small entities’’ set L. 91–190, 83 Stat. 853 (42 U.S.C. 4332). assessment for this rule. No State Sections 50.34 and 50.54 also issued under comments were received. Availability of forth in the Regulatory Flexibility Act or Sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). the final environmental assessment is the size standards established by the Sections 50.58, 50.91, and 50.92 also issued provided in Section IX. NRC (10 CFR 2.810). under Pub. L. 97–415, 96 Stat. 2073 (42 XV. Backfit Analysis U.S.C. 2239). Section 50.78 also issued under XII. Paperwork Reduction Act sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Statement The NRC has determined that the Sections 50.80, 50.81 also issued under sec. This rule contains information Backfit Rule does not apply to this rule; 184, 68 Stat. 954, as amended (42 U.S.C. collection requirements that are subject therefore, a backfit analysis is not 2234). Appendix F also issued under sec. to the Paperwork Reduction Act of 1995 required for this rule. As a voluntary 187, 68 Stat. 955 (42 U.S.C. 2237). (44 U.S.C. 3501 et seq.). These alternative to existing requirements, the ■ 2. In § 50.8 paragraph (b) is revised to requirements were approved by the final rule does not impose different or read as follows: Office of Management and Budget, new requirements on 10 CFR part 50 approval number 3150–0011. licensees or applicants and thus does § 50.8 Information collection The burden to the public for these not constitute a backfit pursuant to requirements: OMB approval. information collections is estimated to § 50.109. * * * * *

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(b) The approved information (with the exception of fracture (iv) A description of, and basis for collection requirements contained in toughness), requirements for ASME acceptability of, the evaluations to be this part appear in §§ 50.30, 50.33, Class 2 and Class 3 SSCs in 10 CFR conducted to satisfy § 50.69(c)(1)(iv). 50.33a, 50.34, 50.34a, 50.35, 50.36, 50.55a(g); and the electrical component The evaluations must include the effects 50.36a, 50.36b, 50.44, 50.46, 50.47, quality and qualification requirements of common cause interaction 50.48, 50.49, 50.54, 50.55, 50.55a, 50.59, in Section 4.3 and 4.4 of IEEE 279, and susceptibility, and the potential impacts 50.60, 50.61, 50.62, 50.63, 50.64, 50.65, Sections 5.3 and 5.4 of IEEE 603–1991, from known degradation mechanisms 50.66, 50.68, 50.69, 50.70, 50.71, 50.72, as incorporated by reference in 10 CFR for both active and passive functions, 50.74, 50.75, 50.80, 50.82, 50.90, 50.91, 50.55a(h). and address internally and externally 50.120, and appendices A, B, E, G, H, (vi) 10 CFR 50.65, except for initiated events and plant operating I, J, K, M, N,O, Q, R, and S to this part. paragraph (a)(4). modes (e.g., full power and shutdown (vii) 10 CFR 50.72. * * * * * conditions). (viii) 10 CFR 50.73. (3) The Commission will approve a ■ 3. A new § 50.69 is added under center (ix) Appendix B to 10 CFR part 50. licensee’s implementation of this heading ‘‘Issuance, Limitations, and (x) The Type B and Type C leakage section if it determines that the process Conditions of Licenses and Construction testing requirements in both Options A for categorization of RISC–1, RISC–2, Permits’’ to read as follows: and B of Appendix J to 10 CFR part 50, RISC–3, and RISC–4 SSCs satisfies the § 50.69 Risk-informed categorization and for penetrations and valves meeting the requirements of § 50.69(c) by issuing a treatment of structures, systems and following criteria: license amendment approving the components for nuclear power reactors. (A) Containment penetrations that are licensee’s use of this section. either 1-inch nominal size or less, or (a) Definitions. (4) An applicant choosing to Risk-Informed Safety Class (RISC)–1 continuously pressurized. implement this section shall include the (B) Containment isolation valves that structures, systems, and components information in § 50.69(b)(2) as part of meet one or more of the following (SSCs) means safety-related SSCs that application. The Commission will criteria: perform safety significant functions. approve an applicant’s implementation (1) The valve is required to be open of this section if it determines that the Risk-Informed Safety Class (RISC)–2 under accident conditions to prevent or structures, systems and components process for categorization of RISC–1, mitigate core damage events; RISC–2, RISC–3, and RISC–4 SSCs (SSCs) means nonsafety-related SSCs (2) The valve is normally closed and satisfies the requirements of § 50.69(c). that perform safety significant functions. in a physically closed, water-filled Risk-Informed Safety Class (RISC)–3 (c) SSC Categorization Process. (1) system; SSCs must be categorized as RISC–1, structures, systems and components (3) The valve is in a physically closed RISC–2, RISC–3, or RISC–4 SSCs using (SSCs) means safety-related SSCs that system whose piping pressure rating a categorization process that determines perform low safety significant functions. exceeds the containment design Risk-Informed Safety Class (RISC)–4 pressure rating and is not connected to if an SSC performs one or more safety structures, systems and components the reactor coolant pressure boundary; significant functions and identifies (SSCs) means nonsafety-related SSCs or those functions. The process must: that perform low safety significant (4) The valve is 1-inch nominal size (i) Consider results and insights from functions. or less. the plant-specific PRA. This PRA must Safety significant function means a (xi) Appendix A to part 100, Sections at a minimum model severe accident function whose degradation or loss VI(a)(1) and VI(a)(2), to the extent that scenarios resulting from internal could result in a significant adverse these regulations require qualification initiating events occurring at full power effect on defense-in-depth, safety testing and specific engineering operation. The PRA must be of margin, or risk. methods to demonstrate that SSCs are sufficient quality and level of detail to (b) Applicability and scope of risk- designed to withstand the Safe support the categorization process, and informed treatment of SSCs and Shutdown Earthquake and Operating must be subjected to a peer review submittal/approval process. (1) A holder Basis Earthquake. process assessed against a standard or of a license to operate a light water (2) A licensee voluntarily choosing to set of acceptance criteria that is reactor (LWR) nuclear power plant implement this section shall submit an endorsed by the NRC. under this part; a holder of a renewed application for license amendment (ii) Determine SSC functional LWR license under part 54 of this under § 50.90 that contains the importance using an integrated, chapter; an applicant for a construction following information: systematic process for addressing permit or operating license under this (i) A description of the process for initiating events (internal and external), part; or an applicant for a design categorization of RISC–1, RISC–2, RISC– SSCs, and plant operating modes, approval, a combined license, or 3 and RISC–4 SSCs. including those not modeled in the manufacturing license under part 52 of (ii) A description of the measures plant-specific PRA. The functions to be this chapter; may voluntarily comply taken to assure that the quality and level identified and considered include with the requirements in this section as of detail of the systematic processes that design bases functions and functions an alternative to compliance with the evaluate the plant for internal and credited for mitigation and prevention following requirements for RISC–3 and external events during normal of severe accidents. All aspects of the RISC–4 SSCs: operation, low power, and shutdown integrated, systematic process used to (i) 10 CFR part 21. (including the plant-specific characterize SSC importance must (ii) The portion of 10 CFR 50.46a(b) probabilistic risk assessment (PRA), reasonably reflect the current plant that imposes requirements to conform to margins-type approaches, or other configuration and operating practices, Appendix B to 10 CFR part 50. systematic evaluation techniques used and applicable plant and industry (iii) 10 CFR 50.49. to evaluate severe accident operational experience. (iv) 10 CFR 50.55(e). vulnerabilities) are adequate for the (iii) Maintain defense-in-depth. (v) The inservice testing requirements categorization of SSCs. (iv) Include evaluations that provide in 10 CFR 50.55a(f); the inservice (iii) Results of the PRA review process reasonable confidence that for SSCs inspection, and repair and replacement conducted to meet § 50.69(c)(1)(i). categorized as RISC–3, sufficient safety

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margins are maintained and that any (ii) Corrective action. Conditions that removing any requirements under potential increases in core damage would prevent a RISC–3 SSC from § 50.69(b)(1) for those SSCs. frequency (CDF) and large early release performing its safety-related functions (2) Following implementation of this frequency (LERF) resulting from under design basis conditions must be section, licensees and applicants shall changes in treatment permitted by corrected in a timely manner. For update their final safety analysis report implementation of §§ 50.69(b)(1) and significant conditions adverse to (FSAR) to reflect which systems have (d)(2) are small. quality, measures must be taken to been categorized, in accordance with (v) Be performed for entire systems provide reasonable confidence that the § 50.71(e). and structures, not for selected cause of the condition is determined (3) When a licensee first implements components within a system or and corrective action taken to preclude this section for a SSC, changes to the structure. repetition. FSAR for the implementation of the (2) The SSCs must be categorized by (e) Feedback and process changes in accordance with § 50.69(d) an Integrated Decision-Making Panel adjustment.—(1) RISC–1, RISC–2, RISC– need not include a supporting § 50.59 (IDP) staffed with expert, plant- 3 and RISC–4 SSCs. The licensee shall evaluation of the changes directly knowledgeable members whose review changes to the plant, operational related to implementation. Thereafter, expertise includes, at a minimum, PRA, practices, applicable plant and industry changes to the programs and procedures safety analysis, plant operation, design operational experience, and, as for implementation of § 50.69(d), as engineering, and system engineering. appropriate, update the PRA and SSC described in the FSAR, may be made if (d) Alternative treatment categorization and treatment processes. the requirements of this section and requirements.—(1) RISC–1 and RISC 2 The licensee shall perform this review § 50.59 continue to be met. SSCs. The licensee or applicant shall in a timely manner but no longer than (4) When a licensee first implements ensure that RISC–1 and RISC–2 SSCs once every two refueling outages. this section for a SSC, changes to the perform their functions consistent with (2) RISC–1 and RISC–2 SSCs. The quality assurance plan for the the categorization process assumptions licensee shall monitor the performance implementation of the changes in by evaluating treatment being applied to of RISC–1 and RISC–2 SSCs. The accordance with § 50.69(d) need not these SSCs to ensure that it supports the licensee shall make adjustments as include a supporting § 50.54(a) review key assumptions in the categorization necessary to either the categorization or of the changes directly related to process that relate to their assumed treatment processes so that the implementation. Thereafter, changes to performance. categorization process and results are the programs and procedures for maintained valid. implementation of § 50.69(d), as (2) RISC–3 SSCs. The licensee or described in the quality assurance plan (3) RISC–3 SSCs. The licensee shall applicant shall ensure, with reasonable may be made if the requirements of this consider data collected in confidence, that RISC–3 SSCs remain section and § 50.54(a) continue to be § 50.69(d)(2)(i) for RISC–3 SSCs to capable of performing their safety- met. determine if there are any adverse related functions under design basis (g) Reporting. The licensee shall changes in performance such that the conditions, including seismic submit a licensee event report under SSC unreliability values approach or conditions and environmental § 50.73(b) for any event or condition exceed the values used in the conditions and effects throughout their that prevented, or would have evaluations conducted to satisfy service life. The treatment of RISC–3 prevented, a RISC–1 or RISC–2 SSC § 50.69(c)(1)(iv). The licensee shall SSCs must be consistent with the from performing a safety significant make adjustments as necessary to the categorization process. Inspection and function. testing, and corrective action shall be categorization or treatment processes so provided for RISC–3 SSCs. that the categorization process and Dated in Rockville, Maryland this 15th day of November 2004. (i) Inspection and testing. Periodic results are maintained valid. inspection and testing activities must be (f) Program documentation, change For the Nuclear Regulatory Commission. conducted to determine that RISC–3 control and records. (1) The licensee or Annette L. Vietti-Cook, SSCs will remain capable of performing applicant shall document the basis for Secretary of the Commission. their safety-related functions under its categorization of any SSC under [FR Doc. 04–25665 Filed 11–19–04; 8:45 am] design basis conditions; and paragraph (c) of this section before BILLING CODE 7590–01–P

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Part III

Department of Housing and Urban Development 24 CFR Part 92 HOME Investment Partnerships Program; Amendments to Homeownership Affordability Requirements; Interim Rule

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DEPARTMENT OF HOUSING AND Development, 451 Seventh Street, SW., where there are no net proceeds or URBAN DEVELOPMENT Washington, DC 20410–7000; telephone where the net proceeds are insufficient (202) 708–2470. (This is not a toll-free to repay the full amount of the 24 CFR Part 92 number.) A telecommunications device assistance.’’ for hearing- and speech-impaired HUD has implemented the [Docket No. FR–4940–I–01] persons (TTY) is available at 800–877– homeownership affordability RIN 2501–AD06 8339 (Federal Information Relay requirements, including the recapture Service). provisions, at § 92.254. The regulation HOME Investment Partnerships does not explicitly track the statutory SUPPLEMENTARY INFORMATION: Program; Amendments to language limiting recaptures to the Homeownership Affordability I. Background amount of the net proceeds. However, Requirements The HOME Investment Partnerships § 92.254(a)(5)(ii)(3) allows net proceeds to be shared if they are not sufficient to AGENCY: Office of the Secretary, HUD. program (HOME program) is authorized under Title II of the Cranston-Gonzalez recapture the full HOME investment ACTION: Interim rule. National Affordable Housing Act (Public and enables the homeowner to recover Law 101–625, approved November 28, the downpayment and any capital SUMMARY: This interim rule revises the improvement investment. homeownership affordability 1990) (NAHA). Through the HOME requirements of the HOME Investment program, HUD allocates funds by II. This Interim Rule Partnership program. First, the interim formula among eligible state and local This interim rule revises the rule clarifies that, upon the sale of governments to strengthen public- affordability requirements for HOME-assisted homeownership private partnerships and to expand the homeownership housing assisted under housing before the close of the required supply of decent, safe, sanitary, and the HOME program. This section of the affordability period, a participating affordable housing for very low-income preamble describes the specific changes jurisdiction may recapture an amount and low-income families. Generally, that will be made by this interim rule. less than or equal to the net proceeds of HOME funds must be matched by non- the sale. Second, the interim rule also federal resources. State and local A. Limitation of Recapture to Net provides a participating jurisdiction governments that become participating Proceeds with the flexibility to invest additional jurisdictions may use HOME funds to This interim rule revises § 92.254 to HOME funds in homebuyer housing for carry out multi-year housing strategies clarify that recaptures are limited to the which HOME funds have already been through acquisition, rehabilitation, and amount of the net proceeds and to more used. new construction of housing, and closely track the statutory language of DATES: Effective Date: December 22, through tenant-based rental assistance. NAHA. Specifically, the interim rule 2004. Participating jurisdictions may provide explicitly provides that when the Comment Due Date: January 21, 2005. assistance in a number of eligible forms, recapture requirement is triggered by a including grants, loans, advances, ADDRESSES: sale (voluntary or involuntary) of the Interested persons are equity investments, interest subsidies, invited to submit comments regarding housing, and there are no net proceeds and other forms of assistance that HUD or the net proceeds are insufficient to this rule to the Regulations Division, approves. HUD’s regulations for the Office of General Counsel, Room 10276, repay the HOME investment due, the HOME Program are located in 24 CFR participating jurisdiction may recapture Department of Housing and Urban part 92. Development, 451 Seventh Street, SW., an amount less than or equal to the net Section 215(b) of NAHA establishes proceeds. The net proceeds are the sales Washington, DC 20410–0500. Electronic affordability requirements for HOME- comments may be submitted through price minus loan repayment (other than assisted homeownership housing. These HOME funds) and any closing costs. either: requirements apply to both the initial • The Federal eRulemaking Portal: at The new regulatory language conforms sale to a HOME-assisted homebuyer and the regulation to the statutory language http://www.regulations.gov; or to any subsequent resale by that • The HUD electronic Web site at: in Section 215(b)(3)(B) of NAHA. That homebuyer during the applicable period section limits repayment of HOME http://www.epa.gov/feddocket. Follow of affordability. Specifically, the statute the link entitled ‘‘View Open HUD assistance to recapture out of net provides that participating jurisdictions proceeds when the property is sold Dockets.’’ Commenters should follow must impose restrictions that either the instructions provided on that site to before the affordability restrictions require that: (1) The HOME-assisted expire. For example, a low-income submit comments electronically. housing be resold to another low- Facsimile (FAX) comments are not homebuyer receives $10,000 in HOME income homebuyer at an affordable assistance to purchase a home and sells acceptable. In all cases, communications price; or (2) the HOME-assisted housing must refer to the docket number and the property during the period of may be resold to any homebuyer affordability. The net proceeds of the title. All comments and regardless of income, but the subsidy to communications submitted will be sale ‘‘after the seller pays the first the original homebuyer must be mortgage and closing costs—is $7,500. available for public inspection and recaptured unless the net proceeds of copying between 8 a.m. and 5 p.m. The new regulatory language reflects the the sale are insufficient. statute in limiting the maximum amount weekdays at the above address. Copies Under the second provision discussed are also available for inspection and that the participating jurisdiction may above (i.e., the recapture of the subsidy), recapture up to the $7,500 available downloading at http://www.epa.gov/ NAHA limits the amount of the feddocket. from the sale, as opposed to the entire recaptured assistance to an amount $10,000. FOR FURTHER INFORMATION CONTACT: equal to the net proceeds of the resale. Virginia Sardone, Director, Program Specifically, Section 215(b)(3)(B) of B. Investment of Additional HOME Policy Division, Office of Affordable NAHA requires that a participating Funds in Homeownership Projects Housing Programs, Room 7164, jurisdiction adopt restrictions to In addition to clarifying the Department of Housing and Urban recapture the HOME investment ‘‘except repayment requirements, this interim

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rule will provide an additional tool for public participation. The good cause ‘‘Regulatory Planning and Review’’). the participating jurisdiction to preserve requirement is satisfied when prior OMB determined that this rule is a HOME-assisted homebuyer housing. public procedure is ‘‘impractical, ‘‘significant regulatory action’’ as Specifically, the interim rule creates a unnecessary, or contrary to the public defined in Section 3(f) of the Order new § 92.254(a)(9) to provide flexibility interest’’ (see 24 CFR 10.1). For the (although not an economically to participating jurisdictions to invest following reasons, HUD has determined significant regulatory action, as additional HOME funds to preserve that good cause exists to publish this provided under Section 3(f)(1) of the homebuyer housing for which HOME rule for effect without soliciting prior Order). Any changes made to the rule funds were already used. public comments. subsequent to its submission to OMB The interim rule permits participating The interim rule revises § 92.254 to are identified in the docket file, which jurisdictions to use additional HOME more closely track the statutory is available for public inspection in the funds to acquire the housing through a language of NAHA regarding recapture Regulations Division, Room 10276, purchase option, right of first refusal or of HOME homeownership assistance. Office of General Counsel, Department other preemptive right before The amendment does not impose a new of Housing and Urban Development, foreclosure, to acquire the housing at regulatory obligation, nor modify an 451 Seventh Street, SW., Washington, the foreclosure sale, to undertake any existing requirement. Rather, the new DC 20410–0500. necessary rehabilitation, and to provide regulatory language conforms the HOME Unfunded Mandates Reform Act assistance to another eligible program regulations to the statutory homebuyer. The participating language in Section 215(b)(3)(B) of Title II of the Unfunded Mandates jurisdiction may invest additional NAHA. That section limits repayment of Reform Act of 1995 (2 U.S.C. 1531– HOME funds whether the housing was HOME assistance to recapture out of net 1538) (UMRA) establishes requirements subject to resale restrictions or to proceeds when the property is sold for federal agencies to assess the effects recapture requirements. before the affordability restrictions of their regulatory actions on state, New § 92.254(a)(9) authorizes the use expire. Since the recapture limitation is local, and tribal governments and the of additional HOME funds to preserve statutory in nature, HUD does not have private sector. This interim rule does the HOME-assisted homeownership the discretion to revise the new not impose any federal mandate on any housing stock on which the affordability regulatory language in response to state, local, or tribal government or the requirements would lapse upon public comments. Accordingly, it is private sector within the meaning of foreclosure. If a participating unnecessary to delay the effectiveness of UMRA. jurisdiction forecloses on a HOME loan, this regulatory change in order to solicit Executive Order 13132, Federalism it receives the housing and can preserve prior public comment. affordability without additional cost to In addition to clarifying the Executive Order 13132 (entitled the HOME program. Accordingly, the repayment requirements, this interim ‘‘Federalism’’) prohibits, to the extent interim rule does not permit the use of rule will make a change to the HOME practicable and permitted by law, an additional HOME funds in the case of homeownership affordability agency from promulgating a regulation foreclosure of a defaulted HOME loan. requirements. Specifically, the interim that has federalism implications and The per-unit HOME subsidy limit in rule provides flexibility to participating either imposes substantial direct § 92.250 applies to the total HOME jurisdictions to invest additional HOME compliance costs on state and local funds used for the housing (i.e., the funds to preserve homebuyer housing governments and is not required by original amount plus the additional for which HOME funds were already statute or preempts state law, unless the amount). To provide some relief from used. This change will not impose a relevant requirements of Section 6 of the this requirement, the interim rule new regulatory burden on participating Executive Order are met. This rule does permits HOME ‘‘administrative’’ funds jurisdictions but, rather, provide them not have federalism implications and to be used so long as they do not exceed with an additional tool to preserve does not impose substantial direct the cap on administrative funds in HOME-assisted homebuyer housing. compliance costs on state and local § 92.207. HUD believes this use of funds Accordingly, HUD believes it would be governments or preempt state law is a reasonable administrative cost of the contrary to the public interest to delay within the meaning of the Executive HOME program. To the extent effectiveness of this change to solicit Order. administrative funds are used, they can public comment. Impact on Small Entities be reimbursed, in whole or in part, Although HUD believes that good when the housing is sold to a The Secretary, in accordance with the cause exists to publish this rule for Regulatory Flexibility Act (5 U.S.C. homebuyer. The reimbursement of effect without prior public comment, it administrative funds will be considered 605(b)), has reviewed and approved this recognizes the value of public comment interim rule and in so doing certifies a return of grant funds and all returned in the development of its regulations. funds will continue to be available for that this rule will not have a significant Therefore, HUD has issued these economic impact on a substantial administrative and planning costs. Any regulations on an interim basis and has additional amount realized from the sale number of small entities for the provided the public with a 60-day following reasons. of the housing will be HOME program comment period. HUD welcomes income. First, the majority of jurisdictions that comments on the regulatory are statutorily eligible to receive HOME III. Justification for Interim amendments made by this interim rule. formula allocations are relatively larger Rulemaking The public comments will be addressed cities, counties or states. The new In general, before issuing a rule for in the final rule. regulatory language regarding recaptures effect, HUD publishes it for public IV. Findings and Certifications will not have any impact on comment, in accordance with its own participating jurisdictions. Rather, the regulations on rulemaking in 24 CFR Regulatory Planning and Review change will conform the HOME program part 10. Part 10 provides for exceptions The Office of Management and Budget regulations to the statutory language in to the general rule if HUD finds good (OMB) reviewed this rule under Section 215(b)(3)(B) of NAHA. That cause to omit advanced notice and Executive Order 12866 (entitled section limits repayment of HOME

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assistance to recapture out of net List of Subjects in 24 CFR Part 92 (9) Preserving affordability. (i) proceeds when the property is sold Administrative practice and Notwithstanding § 92.214(a)(6), to before the affordability restrictions procedure, Grant programs—housing preserve the affordability of housing expire. Second, the interim rule and community development, Low- and that was previously assisted with HOME provides flexibility to participating moderate-income housing, funds and subject to the requirements of jurisdictions to invest additional HOME Manufactured homes, Rent subsidies, § 92.254(a), a participating jurisdiction funds to preserve homebuyer housing Reporting and recordkeeping may use additional HOME funds to for which HOME funds were already requirements. acquire the housing through a purchase used. To the extent this change has any ■ Accordingly, HUD amends 24 CFR part option, right of first refusal, or other impact on participating jurisdictions, it preemptive right before foreclosure, or will be a beneficial one of providing 92 as follows: to acquire the housing at the foreclosure them with an additional tool to preserve PART 92—HOME INVESTMENT HOME-assisted homebuyer housing. sale, to undertake any necessary PARTNERSHIPS PROGRAM Notwithstanding HUD’s rehabilitation, and to provide assistance determination that this rule will not ■ 1. The authority citation for 24 CFR to another homebuyer. The housing have a significant economic impact on part 92 continues to read as follows: must be sold to a new eligible a substantial number of small entities, homebuyer in accordance with the Authority: 42 U.S.C. 3535(d) and 12701– requirements of § 92.254(a). Additional HUD specifically invites comments 12839. regarding less burdensome alternatives HOME funds may not be used if the ■ to this rule that will meet HUD’s 2. In § 92.254, add two sentences at the mortgage in default was funded with objectives as described in this preamble. end of paragraph (a)(5)(ii)(A) and add HOME funds. new paragraph (a)(9) to read as follows: Environmental Impact (ii) The total amount of original and § 92.254 Qualification as affordable additional HOME assistance may not A Finding of No Significant Impact housing: Homeownership. with respect to the environment has exceed the maximum per-unit subsidy (a) * * * been made in accordance with HUD amount established under § 92.250. regulations at 24 CFR part 50, which (5) * * * Alternatively to charging the cost to the implement Section 102(2)(C) of the (ii) * * * HOME program under § 92.206, the National Environmental Policy Act of (A) * * * In establishing its recapture participating jurisdiction may charge 1969 (42 U.S.C. 4332(2)(C)). The requirements, the participating the cost to 2 the HOME program under Finding of No Significant Impact is jurisdiction is subject to the limitation § 92.207, as a reasonable administrative available for public inspection between that when the recapture requirement is cost of its HOME program, so that the the hours of 8 a.m. and 5 p.m. weekdays triggered by a sale (voluntary or additional HOME funds for the housing involuntary) of the housing unit, and in the Regulations Division, Office of are not subject to the maximum per-unit there are no net proceeds or the net General Counsel, Room 10276, subsidy amount. proceeds are insufficient to repay the Department of Housing and Urban * * * * * Development, 451 Seventh Street, SW., HOME investment due, the participating Washington, DC 20410–0500. jurisdiction can only recapture the net Dated: October 22, 2004. proceeds, if any. The net proceeds are Alphonso Jackson, Catalog of Federal Domestic Assistance the sales price minus superior loan Secretary. repayment (other than HOME funds) The Catalog of Federal Domestic [FR Doc. 04–25753 Filed 11–19–04; 8:45 am] Assistance number for the HOME and any closing costs. Program is 14.239. * * * * * BILLING CODE 4210–32–P

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Reader Aids Federal Register Vol. 69, No. 224 Monday, November 22, 2004

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER

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. 4279...... 64829 Presidential Documents 3 CFR Proposed Rules: Executive orders and proclamations 741–6000 Proclamations: 923...... 63958 The United States Government Manual 741–6000 7838...... 65041 1005...... 67670 7839...... 65043 Other Services 1006...... 67670 7840...... 65045 1007...... 67670 Electronic and on-line services (voice) 741–6020 7841...... 65047 1260...... 65386 Privacy Act Compilation 741–6064 7842...... 65049 1717...... 64689 Public Laws Update Service (numbers, dates, etc.) 741–6043 7843...... 65051 1782...... 65546 TTY for the deaf-and-hard-of-hearing 741–6086 7844...... 65511 1951...... 65546 7845...... 65515 1955...... 65546 ELECTRONIC RESEARCH 7846...... 67501 1956...... 65546 World Wide Web Executive Orders: 4280...... 65554 12163 (Amended by Full text of the daily Federal Register, CFR and other publications EO 13361)...... 67633 8 CFR is located at: http://www.gpoaccess.gov/nara/index.html 12170 (See Notice of 215...... 64477, 65508 Federal Register information and research tools, including Public November 9, 235...... 64477, 65508 Inspection List, indexes, and links to GPO Access are located at: 2004) ...... 65513 252...... 64477, 65508 http://www.archives.gov/federallregister/ 12938 (See Notice of November 4, 9 CFR E-mail 2004) ...... 64637 71...... 64644 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13067 (See Notice of 77...... 64644 an open e-mail service that provides subscribers with a digital November 1, 78 ...... 64245, 64644, 67501 form of the Federal Register Table of Contents. The digital form 2004) ...... 63915 79...... 64644 of the Federal Register Table of Contents includes HTML and 13094 (See Notice of 80...... 64644 PDF links to the full text of each document. November 4, 85...... 64644 2004) ...... 64637 To join or leave, go to http://listserv.access.gpo.gov and select 93...... 64644 Online mailing list archives, FEDREGTOC-L, Join or leave the list 13361...... 67633 (or change settings); then follow the instructions. Administrative Orders: 10 CFR Notices: PENS (Public Law Electronic Notification Service) is an e-mail 50...... 68808 Notice of November 1, service that notifies subscribers of recently enacted laws. 74...... 64249 2004 ...... 63915 431...... 63574 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Notice of November 4, and select Join or leave the list (or change settings); then follow 2004 ...... 64637 Proposed Rules: the instructions. Notice of November 9, 2...... 67070 30...... 67070 FEDREGTOC-L and PENS are mailing lists only. We cannot 2004 ...... 65513 40...... 67070 respond to specific inquiries. Presidential Determinations: 50...... 67070 Reference questions. Send questions and comments about the 52...... 67070 Federal Register system to: [email protected] No. 2005-05 of October 20, 2004 ...... 63917 63...... 67070 The Federal Register staff cannot interpret specific documents or No. 2005-06 of 70...... 67070 regulations. October 22, 2004 ...... 64475 72...... 67070 73...... 64690, 67070 5 CFR 76...... 67070 FEDERAL REGISTER PAGES AND DATE, NOVEMBER Proposed Rules: 150...... 67070 63317–63438...... 1 307...... 64503 430...... 67680 63439–63916...... 2 7 CFR 11 CFR 63917–64244...... 3 102...... 63919 64245–64474...... 4 Ch. XXX...... 64477 27–52...... 65053 106...... 63919 64475–64636...... 5 109...... 63919 64637–64828...... 8 301...... 64639, 67041 319...... 65053 64829–65052...... 9 12 CFR 905...... 64641 65053–65366...... 10 1580...... 63317 5...... 64478 65367–65514...... 12 1775...... 65517 19...... 65067 65515–67040...... 15 1776...... 67263 201...... 67635 67041–67262...... 16 1777...... 65517 509...... 64249 67263–67500...... 17 1778...... 65517 Proposed Rules: 67501–67632...... 18 1780...... 65517 615...... 67070 67633–67804...... 19 1942...... 65517 617...... 67074 67805–68052...... 22 1955...... 65520 3570...... 65517 13 CFR 4274...... 65517 105...... 63921

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14 CFR 274...... 67392 Proposed Rules: Proposed Rules: 67...... 63338 23...... 67636 Ch. I...... 63979, 65555 18 CFR 110 ...... 64546, 64549, 64551 25...... 64651, 67492 45 CFR 39 ...... 63439, 63440, 63442, 375...... 64659 117 ...... 64553, 64875, 67294 Proposed Rules: 63443, 64251, 64253, 64255, 165...... 64555 19 CFR 98...... 64881 64482, 64653, 64832, 64835, 36 CFR 64836, 64839, 64842, 64846, 10...... 63445 46 CFR 7...... 65348 64847, 64849, 64850, 64852, 178...... 63445 Proposed Rules: 501...... 64398 64854, 64856, 64858, 65520, Proposed Rules: 535...... 64398 65522, 65523, 65528, 65531, 206...... 64541 7...... 65556 Proposed Rules: 65533, 65535, 67043, 67045, 207...... 64541 1228...... 67692 531...... 63981 67047, 67050, 67805, 67807, 1234...... 63980 20 CFR 67809 37 CFR 47 CFR 71 ...... 64656, 65069, 65367, 404...... 67018 1...... 65544 65368, 67052, 67215, 67638, 2...... 63320 Proposed Rules: 7...... 63320 2...... 67823, 67853 67811 404...... 64702, 67039 13...... 64664 97...... 63318, 65538 39 CFR 22...... 67823, 67853 121...... 67492 21 CFR 20...... 63946 24...... 67823, 67853 Proposed Rules: 180...... 65540 111...... 63452 73 ...... 63458, 64681, 64682, 23...... 67860 522...... 67817, 67818 501...... 67508 65381, 65382, 65545, 67265, 39 ...... 63336, 63960, 63962, 558...... 67263 67266 63963, 63965, 63968, 64260, Proposed Rules: Proposed Rules: 111...... 64877 74...... 67823, 67853 64262, 64263, 64504, 64506, 101...... 67513 3001...... 65563, 67514 78...... 67823, 67853 64510, 64513, 64515, 64517, 341...... 63482 80...... 64664 64520, 64523, 64525, 64530, 890...... 64266 40 CFR 90...... 67823, 67853 64534, 64537, 64539, 64692, 52 ...... 63321, 63324, 63947, Proposed Rules: 64695, 64869, 64871, 65059, 22 CFR 64259, 64661, 64860, 65069, 2...... 65570, 67880 65097, 65099, 65101, 65103, 51...... 67053 65375, 65378, 67058, 67060, 22...... 67880 65105, 65388, 65391, 67864, 171...... 63934 67062, 67645, 67819 24...... 67880 67867, 67869 63...... 63452 27...... 63459 61...... 67258 24 CFR 81...... 64133, 64860 64...... 65401 71 ...... 63970, 63972, 63973, 5...... 65024 131...... 67218 73 ...... 65118, 65119, 65120, 63974, 63975, 63976, 63978, 81...... 63580 180 ...... 63950, 63954, 65073, 67296, 67297, 67882 65107 92...... 68850 65081 74...... 67880 382...... 64364 Proposed Rules: 239...... 65381 78...... 67880 15 CFR 81...... 63576 258...... 65381 80...... 65570 268...... 67647 90...... 67880 740 ...... 64483, 64490, 64657 203...... 65324 271...... 64861 744 ...... 64657, 65368, 65539 26 CFR 48 CFR 748...... 64483 Proposed Rules: 31...... 67054 52 ...... 63981, 64703, 65117, 201...... 63326 774...... 64483, 64490 202...... 63326 Proposed Rules: 65393, 65394, 67100, 67694, Proposed Rules: 67880 204...... 63327 700...... 67872 1 ...... 64546, 65108, 65555, 63...... 63489 205...... 63327 732...... 65555 67075, 67681, 67873 136...... 64704, 64707 208...... 63327, 62328 736...... 65555 31...... 67075 194...... 64558 209...... 65088 740...... 65555 27 CFR 268...... 67695 210...... 63328 744...... 65555 271...... 64880 211...... 67854 752...... 65555 24...... 67639 720...... 65565 212 ...... 63329, 62330, 65089 764...... 65555 28 CFR 214...... 65089 772...... 65555 41 CFR 217...... 67855 0...... 65542 219...... 63328, 67855 16 CFR Proposed Rules: 29 CFR 51-2...... 65395 224...... 67856 603...... 63922 51-3...... 65395 226...... 63327 4022...... 65543 613...... 63922 51-4...... 65395 227...... 67856 614...... 63922 4044...... 65543 228...... 65090 Proposed Rules: Proposed Rules: 42 CFR 231...... 63331 Ch. I ...... 64698 458...... 64226 403...... 66236 235 ...... 63327, 65091, 67857 310...... 67287 405...... 66236 251...... 67858 30 CFR 410...... 66236 252 ...... 63327, 62328, 65088, 17 CFR Proposed Rules: 411...... 66236 65091, 67856, 67858 37...... 67811 56...... 67681 412...... 66922 1804...... 63458 38...... 67811 57...... 67681 413...... 66922 1815...... 63458 40...... 67503 58...... 67681 414...... 66236 1816...... 63458 41...... 67503 70...... 67681 418...... 66236 1817...... 63458 145...... 67503 71...... 67681 419...... 65682 1823...... 63458 249...... 67053 72...... 67681 424...... 66236 1837...... 63458 Proposed Rules: 75...... 67681 484...... 66236 1852...... 63458 1...... 64873 90...... 67681 486...... 66236 Proposed Rules: 228...... 67392 Ch. 2 ...... 65121 229...... 67392 33 CFR 43 CFR 2...... 63436 230...... 67392 117 ...... 63574, 64494, 64860, Proposed Rules: 5...... 63436 239...... 67392 65369, 65371, 67055, 67056 2530...... 67880 7...... 63436 240...... 67392 165...... 65373 23...... 65330 243...... 67392 402...... 64258 44 CFR 52...... 65330 270...... 64816 403...... 64258 64...... 63456 204...... 65121

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208...... 65121 252...... 65121, 67885 172...... 65294 50 CFR 209...... 65121 253...... 65121 173...... 65294 300 ...... 65382, 67267, 67268 212...... 65121 175...... 65294 622...... 65092 213...... 65121 49 CFR 229...... 63890 635...... 67268 215...... 65121 238...... 63890 648 ...... 63460, 67284, 67780 217...... 65121 40...... 64865 171...... 64462 379...... 63997 660 ...... 63332, 62333, 64501, 219...... 65121 381...... 63997 222...... 65121 172...... 64462 65093, 67285, 67508, 67509, 385...... 63997 223...... 65121 173...... 64462 67510 390...... 63997 225...... 65121 222...... 67858 679...... 64683, 67668 227...... 65121 229...... 67858 395...... 63997 Proposed Rules: 233...... 65121 501...... 63957 571...... 65126 17 ...... 64710, 64884, 64889 235...... 65121 541...... 63957 1522...... 65332 223...... 65127 236...... 65121 571 ...... 64495, 67068, 67654, 1540...... 65258 229...... 65127 237...... 65121 67660, 67663 1542...... 65258 600...... 67100 239 ...... 67883, 67884, 67885 574...... 64500 1544...... 65258 622...... 67104, 67106 242...... 65121 Proposed Rules: 1546...... 65258 648 ...... 63341, 63498, 67528 247...... 65121 171...... 65294 1548...... 65258 679...... 67107

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REMINDERS Test procedures and 11-29-04; published 9-28- The items in this list were efficiency standards— COMMENTS DUE NEXT 04 [FR 04-21640] editorially compiled as an aid Commercial packaged WEEK EDUCATION DEPARTMENT to Federal Register users. boilers; published 10- Civil rights: Inclusion or exclusion from 21-04 Boy Scouts of America this list has no legal AGRICULTURE Warm air furnaces, Equal Acess Act; significance. DEPARTMENT heating, air conditioning, implementation; comments and water-heating Agricultural Marketing Service due by 12-3-04; published equipment, and electric 10-19-04 [FR 04-23290] RULES GOING INTO motors; published 10- Cotton classing, testing and EFFECT NOVEMBER 22, 21-04 standards: ENERGY DEPARTMENT 2004 ENVIRONMENTAL Classification services to Meetings: PROTECTION AGENCY growers; 2004 user fees; Environmental Management AGRICULTURE Open for comments until Air programs: Site-Specific Advisory DEPARTMENT further notice; published Board— Animal and Plant Health Ambient air quality 5-28-04 [FR 04-12138] standards, national— Oak Ridge Reservation, Inspection Service COMMERCE DEPARTMENT TN; Open for comments 8-hour ozone standard; Bees, beekeeping byproducts, National Oceanic and until further notice; designated and used beekeeping Atmospheric Administration published 11-19-04 [FR equipment; importation; nonattainment areas Fishery conservation and 04-25693] published 10-21-04 reclassified; published management: ENERGY DEPARTMENT AGRICULTURE 9-22-04 Caribbean, Gulf, and South DEPARTMENT Air quality implementation Energy Efficiency and Atlantic fisheries— Renewable Energy Office Rural Utilities Service plans; approval and Puerto Rico and US Grants: promulgation; various Commercial and industrial States; air quality planning Virgin Islands reef fish; equipment; energy efficiency Household Water Well purposes; designation of comments due by 12-1- program: System Program; areas: 04; published 11-16-04 Test procedures and published 10-6-04 [FR 04-25430] Revolving Fund Program; Maryland; published 10-21- efficiency standards— 04 Northeastern United States Commercial packaged revolving funds for fisheries— financing water and Air quality implementation boilers; Open for wastewater projects; plans; approval and Atlantic sea scallop comments until further published 10-6-04 promulgation; various fishery; comments due notice; published 10-21- States: by 12-1-04; published 04 [FR 04-17730] COMMERCE DEPARTMENT 11-1-04 [FR 04-24344] National Oceanic and California; published 9-21-04 ENERGY DEPARTMENT West Coast States and Atmospheric Administration Air quality implementation Federal Energy Regulatory plans; approval and Western Pacific Fishery conservation and fisheries— Commission management: promulgation; various West Coast salmon; Electric rate and corporate West Coast States and States; and air programs; comments due by 12-3- regulation filings: Western Pacific State authority delegations: 04; published 11-18-04 Virginia Electric & Power fisheries— North Dakota; published 10- [FR 04-25642] Co. et al.; Open for Coastal pelagic species; 21-04 International fisheries comments until further published 10-21-04 FEDERAL regulations: notice; published 10-1-03 DEFENSE DEPARTMENT COMMUNICATIONS [FR 03-24818] COMMISSION Fraser River sockeye and Acquisition regulations: pink salmon; inseason ENVIRONMENTAL Radio stations; table of Architect-engineer services orders; comments due by PROTECTION AGENCY assignments: contracting; published 11- 12-2-04; published 11-17- Air programs; approval and 22-04 Alabama; published 10-25- 04 [FR 04-25524] promulgation; State plans 04 Freedom of Information Act; Marine mammals: for designated facilities and implementation; published HEALTH AND HUMAN Incidental taking— pollutants: 11-22-04 SERVICES DEPARTMENT Virginia; comments due by Government supply sources; Dolphin and tuna Food and Drug conservation; tuna 11-29-04; published 10- contractor use; published Administration 29-04 [FR 04-24240] 11-22-04 purse seine vessels in Animal drugs, feeds, and Eastern Tropical Pacific Air quality implementation Obsolete research and related products: plans; approval and development contracting Ocean; classification Estradiol; published 11-22- and permit application promulgation; various procedures removed; States: published 11-22-04 04 changes; comments due by 11-29-04; published Indiana; comments due by Small disadvantaged Trenbolone acetate and 10-29-04 [FR 04-24008] 11-29-04; published 10- businesses and leader estradiol benzoate; 29-04 [FR 04-24238] company contracting; published 11-22-04 COURT SERVICES AND published 11-22-04 HOUSING AND URBAN OFFENDER SUPERVISION Iowa; comments due by 12- Technical amendments; DEVELOPMENT AGENCY FOR THE 3-04; published 11-3-04 published 11-22-04 DEPARTMENT DISTRICT OF COLUMBIA [FR 04-24531] Technical data conformity; Equal employment opportunity; Semi-annual agenda; Open for Texas; comments due by written assurance; published 10-22-04 comments until further 11-29-04; published 10- notice; published 12-22-03 published 11-22-04 Grants: 29-04 [FR 04-24127] [FR 03-25121] ENERGY DEPARTMENT Faith-based organizations; Environmental statements; Energy Efficiency and participation in Native DEFENSE DEPARTMENT availability, etc.: Renewable Energy Office American programs; equal Federal Acquisition Regulation Coastal nonpoint pollution Commercial and industrial treatment of all program (FAR): control program— equipment; energy efficiency participants; published 10- Accounting for unallowable Minnesota and Texas; program: 22-04 costs; comments due by Open for comments

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until further notice; FEDERAL HOMELAND SECURITY Denial of access; appeals published 10-16-03 [FR COMMUNICATIONS DEPARTMENT extension; comments due 03-26087] COMMISSION Coast Guard by 11-30-04; published Pesticides; tolerances in food, Radio services, special: Anchorage regulations: 10-1-04 [FR 04-22051] animal feeds, and raw Fixed microwave services— Maryland; Open for NUCLEAR REGULATORY agricultural commodities: 37.0-38.6 GHz and 38.6- comments until further COMMISSION Allethrin, etc.; comments 40.0 GHz bands; notice; published 1-14-04 Environmental statements; due by 11-29-04; competitive bidding; [FR 04-00749] availability, etc.: published 9-29-04 [FR 04- comments due by 12-3- Fort Wayne State 21695] HOMELAND SECURITY 04; published 10-4-04 DEPARTMENT Developmental Center; Bacillus thuringiensis var. [FR 04-22194] United States Visitor and Open for comments until aizawai strain PS811 Private land mobile Immigrant Status Indicator further notice; published (Cry1F insecticidal services— 5-10-04 [FR 04-10516] protein); comments due Technology Program (US- 800 MHz band; public VISIT): Nuclear equipment and by 11-29-04; published 9- safety interference material; export and import: Biometric data collection 30-04 [FR 04-21877] proceeding; ex parte from additional travelers; Security policies; high-risk Carfentrazone-ethyl; presentations, etc.; expansion to 50 most radioactive material comments due by 11-29- comments due by 12-2- highly trafficked land license requirements; 04; published 9-29-04 [FR 04; published 11-22-04 border ports of entry; comments due by 11-30- 04-21586] [FR 04-25261] comments due by 12-1- 04; published 9-16-04 [FR Citrate Esters; comments Radio stations; table of 04; published 11-5-04 [FR 04-20855] due by 11-29-04; assignments: 04-24811] PERSONNEL MANAGEMENT published 9-29-04 [FR 04- Louisiana; comments due by HOMELAND SECURITY OFFICE 21587] 11-29-04; published 10- DEPARTMENT Acquisition regulations: Cyazofamid; comments due 20-04 [FR 04-23458] Transportation Security Federal Employees Group by 11-29-04; published 9- Louisiana; correction; Administration Life Insurance— 30-04 [FR 04-21931] comments due by 11-29- Dichlormid; comments due 04; published 11-10-04 Hazardous materials drivers; Administrative policy, by 11-29-04; published 9- [FR 04-25064] security threat assessments; practices, and clarifying fees; comments due by 12- language changes; 30-04 [FR 04-21930] Various States; comments 1-04; published 11-10-04 comments due by 12-3- Fenamidone; comments due due by 11-29-04; by 11-29-04; published 9- [FR 04-25122] 04; published 10-4-04 published 10-20-04 [FR [FR 04-21922] 29-04 [FR 04-21694] 04-23457] INTERIOR DEPARTMENT Fludioxonil; comments due Fish and Wildlife Service SMALL BUSINESS GENERAL SERVICES ADMINISTRATION by 11-29-04; published 9- ADMINISTRATION Endangered and threatened 29-04 [FR 04-21803] Disaster loan areas: Federal Acquisition Regulation species permit applications Forchlorfenuron; comments (FAR): Recovery plans— Maine; Open for comments due by 11-29-04; until further notice; Accounting for unallowable Paiute cutthroat trout; published 9-30-04 [FR 04- published 2-17-04 [FR 04- costs; comments due by Open for comments 21932] 03374] 11-29-04; published 9-28- until further notice; Mesotrione; comments due 04 [FR 04-21640] published 9-10-04 [FR Standards of conduct and by 11-29-04; published 9- 04-20517] employee restrictions and 30-04 [FR 04-21934] HEALTH AND HUMAN responsibilities; comments SERVICES DEPARTMENT Endangered and threatened Methoxyfenozide; comments due by 12-3-04; published species: due by 11-29-04; Food and Drug 11-3-04 [FR 04-24498] Administration Critical habitat published 9-29-04 [FR 04- OFFICE OF UNITED STATES designations— 21804] Human drugs: TRADE REPRESENTATIVE Sacramento Mountains Octanal; comments due by Labeling of drug products Trade Representative, Office checkerspot butterfly; 11-29-04; published 9-30- (OTC)— of United States 04 [FR 04-21937] Standardized format; comments due by 11- 29-04; published 11-8- Generalized System of Sodium thiosulfate; implementation date Preferences: comments due by 11-29- delay; comments due 04 [FR 04-24869] 2003 Annual Product 04; published 9-30-04 [FR by 12-2-04; published MERIT SYSTEMS Review, 2002 Annual 04-21933] 9-3-04 [FR 04-18842] PROTECTION BOARD Country Practices Review, Superfund program: Reports and guidance Practice and procedure: and previously deferred Landowner liability documents; availability, etc.: Electronic filing; product decisions; protection; standards for Evaluating safety of implementation; comments petitions disposition; Open conducting appropriate antimicrobial new animal due by 11-29-04; for comments until further inquiries into previous drugs with regard to their published 9-27-04 [FR 04- notice; published 7-6-04 ownership, uses; and microbiological effects on 21589] [FR 04-15361] environmental conditions bacteria of human health NATIONAL AERONAUTICS TRANSPORTATION of property; comments concern; Open for AND SPACE DEPARTMENT due by 11-30-04; comments until further ADMINISTRATION published 9-17-04 [FR 04- notice; published 10-27-03 Federal Aviation 20972] [FR 03-27113] Federal Acquisition Regulation Administration (FAR): Water pollution; effluent Medical devices— Airworthiness directives: Accounting for unallowable guidelines for point source Dental noble metal alloys Airbus; comments due by costs; comments due by categories: and base metal alloys; 11-29-04; published 9-30- 11-29-04; published 9-28- Meat and poultry products Class II special 04 [FR 04-21650] 04 [FR 04-21640] processing facilities; Open controls; Open for Boeing; Open for comments for comments until further comments until further NATIONAL ARCHIVES AND until further notice; notice; published 9-8-04 notice; published 8-23- RECORDS ADMINISTRATION published 8-16-04 [FR 04- [FR 04-12017] 04 [FR 04-19179] Presidential records: 18641]

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Bombardier; comments due have become Federal laws. It located at 19504 Linden Office Building’’. (Oct. 30, by 12-3-04; published 11- may be used in conjunction Boulevard in St. Albans, New 2004; 118 Stat. 2297) 3-04 [FR 04-24543] with ‘‘PLUS’’ (Public Laws York, as the ‘‘Archie Spigner H.R. 5147/P.L. 108–408 Eagle Aircraft; comments Update Service) on 202–741– Post Office Building’’. (Oct. 30, due by 11-29-04; 6043. This list is also 2004; 118 Stat. 2252) To designate the facility of the published 10-22-04 [FR available online at http:// H.R. 4731/P.L. 108–399 United States Postal Service www.archives.gov/ located at 23055 Sherman 04-23623] To amend the Federal Water federal register/public laws/ Way in West Hills, California, Pilatus Aircraft Ltd.; — — Pollution Control Act to public—laws.html. as the ‘‘Evan Asa Ashcraft comments due by 12-3- reauthorize the National Post Office Building’’. (Oct. 30, 04; published 11-1-04 [FR The text of laws is not Estuary Program. (Oct. 30, 2004; 118 Stat. 2298) 04-24323] published in the Federal 2004; 118 Stat. 2253) Pratt & Whitney; comments Register but may be ordered H.R. 4827/P.L. 108–400 H.R. 5186/P.L. 108–409 in ‘‘slip law’’ (individual due by 11-29-04; To amend the Colorado pamphlet) form from the Taxpayer-Teacher Protection published 9-29-04 [FR 04- Canyons National Act of 2004 (Oct. 30, 2004; 21812] Superintendent of Documents, U.S. Government Printing Conservation Area and Black 118 Stat. 2299) Pratt & Whitney Canada; Office, Washington, DC 20402 Ridge Canyons Wilderness comments due by 11-30- H.R. 5294/P.L. 108–410 (phone, 202–512–1808). The Act of 2000 to rename the 04; published 10-1-04 [FR text will also be made Colorado Canyons National John F. Kennedy Center 04-21913] available on the Internet from Conservation Area as the Reauthorization Act of 2004 Rolls-Royce Deutschland; GPO Access at http:// McInnis Canyons National (Oct. 30, 2004; 118 Stat. comments due by 12-3- www.gpoaccess.gov/plaws/ Conservation Area. (Oct. 30, 2303) 2004; 118 Stat. 2254) 04; published 10-4-04 [FR index.html. Some laws may S. 129/P.L. 108–411 04-22192] not yet be available. H.R. 4917/P.L. 108–401 Federal Workforce Flexibility Class E airspace; comments Federal Regulatory H.R. 4381/P.L. 108–392 Act of 2004 (Oct. 30, 2004; due by 11-30-04; published Improvement Act of 2004 To designate the facility of the 118 Stat. 2305) 10-26-04 [FR 04-23868] (Oct. 30, 2004; 118 Stat. United States Postal Service 2255) S. 144/P.L. 108–412 TRANSPORTATION located at 2811 Springdale DEPARTMENT Avenue in Springdale, H.R. 5027/P.L. 108–402 To require the Secretary of Federal Motor Carrier Safety Arkansas, as the ‘‘Harvey and To designate the facility of the Agriculture to establish a Administration Bernice Jones Post Office United States Postal Service program to provide assistance Motor carrier safety standards: Building’’. (Oct. 30, 2004; 118 located at 411 Midway to eligible weed management Drivers’ hours of service— Stat. 2245) Avenue in Mascotte, Florida, entities to control or eradicate as the ‘‘Specialist Eric noxious weeds on public and Compliance requirements; H.R. 4471/P.L. 108–393 Homeownership Opportunities Ramirez Post Office’’. (Oct. private land. (Oct. 30, 2004; electronic on-board 30, 2004; 118 Stat. 2257) 118 Stat. 2320) recorders use; for Native Americans Act of comments due by 11- 2004 (Oct. 30, 2004; 118 Stat. H.R. 5039/P.L. 108–403 S. 643/P.L. 108–413 2246) To designate the facility of the 30-04; published 9-1-04 Hibben Center Act (Oct. 30, H.R. 4481/P.L. 108–394 United States Postal Service [FR 04-19907] 2004; 118 Stat. 2325) Wilson’s Creek National located at United States Route TREASURY DEPARTMENT Battlefield Boundary 1 in Ridgeway, North Carolina, S. 1194/P.L. 108–414 Internal Revenue Service Adjustment Act of 2004 (Oct. as the ‘‘Eva Holtzman Post Mentally Ill Offender Treatment Estate and gift taxes: 30, 2004; 118 Stat. 2247) Office’’. (Oct. 30, 2004; 118 and Crime Reduction Act of Generation-skipping transfer H.R. 4556/P.L. 108–395 Stat. 2258) 2004 (Oct. 30, 2004; 118 Stat. tax; predeceased parent To designate the facility of the H.R. 5051/P.L. 108–404 2327) rule; public hearing; United States Postal Service To designate the facility of the Last List November 8, 2004 comments due by 12-2- located at 1115 South Clinton United States Postal Service 04; published 9-3-04 [FR Avenue in Dunn, North located at 1001 Williams 04-20165] Carolina, as the ‘‘General Street in Ignacio, Colorado, as VETERANS AFFAIRS William Carey Lee Post Office the ‘‘Leonard C. Burch Post Public Laws Electronic DEPARTMENT Building’’. (Oct. 30, 2004; 118 Office Building’’. (Oct. 30, Stat. 2249) Notification Service Adjudication; pensions, 2004; 118 Stat. 2259) (PENS) compensation, dependency, H.R. 4579/P.L. 108–396 H.R. 5107/P.L. 108–405 Truman Farm Home etc.: Justice for All Act of 2004 Expansion Act (Oct. 30, 2004; Accrued benefits; death (Oct. 30, 2004; 118 Stat. PENS is a free electronic mail 118 Stat. 2250) compensation and special 2260) notification service of newly H.R. 4618/P.L. 108–397 rules applicable upon H.R. 5131/P.L. 108–406 enacted public laws. To beneficiary’s death; To designate the facility of the Special Olympics Sport and subscribe, go to http:// comments due by 11-30- United States Postal Service Empowerment Act of 2004 listserv.gsa.gov/archives/ 04; published 10-1-04 [FR located at 10 West Prospect (Oct. 30, 2004; 118 Stat. publaws-l.html 04-21541] Street in Nanuet, New York, 2294) as the ‘‘Anthony I. Lombardi Note: This service is strictly Memorial Post Office H.R. 5133/P.L. 108–407 for E-mail notification of new LIST OF PUBLIC LAWS Building’’. (Oct. 30, 2004; 118 To designate the facility of the laws. The text of laws is not Stat. 2251) United States Postal Service available through this service. This is a continuing list of H.R. 4632/P.L. 108–398 located at 11110 Sunset Hills PENS cannot respond to public bills from the current To designate the facility of the Road in Reston, Virginia, as specific inquiries sent to this session of Congress which United States Postal Service the ‘‘Martha Pennino Post address.

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CFR CHECKLIST Title Stock Number Price Revision Date 13 ...... (869–052–00038–8) ...... 55.00 Jan. 1, 2004 This checklist, prepared by the Office of the Federal Register, is 14 Parts: published weekly. It is arranged in the order of CFR titles, stock 1–59 ...... (869–052–00039–6) ...... 63.00 Jan. 1, 2004 numbers, prices, and revision dates. 60–139 ...... (869–052–00040–0) ...... 61.00 Jan. 1, 2004 An asterisk (*) precedes each entry that has been issued since last 140–199 ...... (869–052–00041–8) ...... 30.00 Jan. 1, 2004 week and which is now available for sale at the Government Printing 200–1199 ...... (869–052–00042–6) ...... 50.00 Jan. 1, 2004 Office. 1200–End ...... (869–052–00043–4) ...... 45.00 Jan. 1, 2004 A checklist of current CFR volumes comprising a complete CFR set, 15 Parts: also appears in the latest issue of the LSA (List of CFR Sections 0–299 ...... (869–052–00044–2) ...... 40.00 Jan. 1, 2004 Affected), which is revised monthly. 300–799 ...... (869–052–00045–1) ...... 60.00 Jan. 1, 2004 800–End ...... (869–052–00046–9) ...... 42.00 Jan. 1, 2004 The CFR is available free on-line through the Government Printing Office’s GPO Access Service at http://www.access.gpo.gov/nara/cfr/ 16 Parts: index.html. For information about GPO Access call the GPO User 0–999 ...... (869–052–00047–7) ...... 50.00 Jan. 1, 2004 Support Team at 1-888-293-6498 (toll free) or 202-512-1530. 1000–End ...... (869–052–00048–5) ...... 60.00 Jan. 1, 2004 The annual rate for subscription to all revised paper volumes is 17 Parts: $1195.00 domestic, $298.75 additional for foreign mailing. 1–199 ...... (869–052–00050–7) ...... 50.00 Apr. 1, 2004 Mail orders to the Superintendent of Documents, Attn: New Orders, 200–239 ...... (869–052–00051–5) ...... 58.00 Apr. 1, 2004 P.O. Box 371954, Pittsburgh, PA 15250–7954. All orders must be 240–End ...... (869–052–00052–3) ...... 62.00 Apr. 1, 2004 accompanied by remittance (check, money order, GPO Deposit 18 Parts: Account, VISA, Master Card, or Discover). Charge orders may be 1–399 ...... (869–052–00053–1) ...... 62.00 Apr. 1, 2004 telephoned to the GPO Order Desk, Monday through Friday, at (202) 400–End ...... (869–052–00054–0) ...... 26.00 Apr. 1, 2004 512–1800 from 8:00 a.m. to 4:00 p.m. eastern time, or FAX your charge orders to (202) 512-2250. 19 Parts: 1–140 ...... (869–052–00055–8) ...... 61.00 Apr. 1, 2004 Title Stock Number Price Revision Date 141–199 ...... (869–052–00056–6) ...... 58.00 Apr. 1, 2004 1, 2 (2 Reserved) ...... (869–052–00001–9) ...... 9.00 4Jan. 1, 2004 200–End ...... (869–052–00057–4) ...... 31.00 Apr. 1, 2004 3 (2003 Compilation 20 Parts: and Parts 100 and 1–399 ...... (869–052–00058–2) ...... 50.00 Apr. 1, 2004 101) ...... (869–052–00002–7) ...... 35.00 1 Jan. 1, 2004 400–499 ...... (869–052–00059–1) ...... 64.00 Apr. 1, 2004 4 ...... (869–052–00003–5) ...... 10.00 Jan. 1, 2004 500–End ...... (869–052–00060–9) ...... 63.00 Apr. 1, 2004 5 Parts: 21 Parts: 1–699 ...... (869–052–00004–3) ...... 60.00 Jan. 1, 2004 1–99 ...... (869–052–00061–2) ...... 42.00 Apr. 1, 2004 700–1199 ...... (869–052–00005–1) ...... 50.00 Jan. 1, 2004 100–169 ...... (869–052–00062–1) ...... 49.00 Apr. 1, 2004 1200–End ...... (869–052–00006–0) ...... 61.00 Jan. 1, 2004 170–199 ...... (869–052–00063–9) ...... 50.00 Apr. 1, 2004 200–299 ...... (869–052–00064–7) ...... 17.00 Apr. 1, 2004 6 ...... (869–052–00007–8) ...... 10.50 Jan. 1, 2004 300–499 ...... (869–052–00065–5) ...... 31.00 Apr. 1, 2004 7 Parts: 500–599 ...... (869–052–00066–3) ...... 47.00 Apr. 1, 2004 1–26 ...... (869–052–00008–6) ...... 44.00 Jan. 1, 2004 600–799 ...... (869–052–00067–1) ...... 15.00 Apr. 1, 2004 27–52 ...... (869–052–00009–4) ...... 49.00 Jan. 1, 2004 800–1299 ...... (869–052–00068–0) ...... 58.00 Apr. 1, 2004 53–209 ...... (869–052–00010–8) ...... 37.00 Jan. 1, 2004 1300–End ...... (869–052–00069–8) ...... 24.00 Apr. 1, 2004 210–299 ...... (869–052–00011–6) ...... 62.00 Jan. 1, 2004 22 Parts: 300–399 ...... (869–052–00012–4) ...... 46.00 Jan. 1, 2004 1–299 ...... (869–052–00070–1) ...... 63.00 Apr. 1, 2004 400–699 ...... (869–052–00013–2) ...... 42.00 Jan. 1, 2004 300–End ...... (869–052–00071–0) ...... 45.00 Apr. 1, 2004 700–899 ...... (869–052–00014–1) ...... 43.00 Jan. 1, 2004 900–999 ...... (869–052–00015–9) ...... 60.00 Jan. 1, 2004 23 ...... (869–052–00072–8) ...... 45.00 Apr. 1, 2004 1000–1199 ...... (869–052–00016–7) ...... 22.00 Jan. 1, 2004 24 Parts: 1200–1599 ...... (869–052–00017–5) ...... 61.00 Jan. 1, 2004 0–199 ...... (869–052–00073–6) ...... 60.00 Apr. 1, 2004 1600–1899 ...... (869–052–00018–3) ...... 64.00 Jan. 1, 2004 200–499 ...... (869–052–00074–4) ...... 50.00 Apr. 1, 2004 1900–1939 ...... (869–052–00019–1) ...... 31.00 Jan. 1, 2004 500–699 ...... (869–052–00075–2) ...... 30.00 Apr. 1, 2004 1940–1949 ...... (869–052–00020–5) ...... 50.00 Jan. 1, 2004 700–1699 ...... (869–052–00076–1) ...... 61.00 Apr. 1, 2004 1950–1999 ...... (869–052–00021–3) ...... 46.00 Jan. 1, 2004 1700–End ...... (869–052–00077–9) ...... 30.00 Apr. 1, 2004 2000–End ...... (869–052–00022–1) ...... 50.00 Jan. 1, 2004 25 ...... (869–052–00078–7) ...... 63.00 Apr. 1, 2004 8 ...... (869–052–00023–0) ...... 63.00 Jan. 1, 2004 26 Parts: 9 Parts: §§ 1.0–1–1.60 ...... (869–052–00079–5) ...... 49.00 Apr. 1, 2004 1–199 ...... (869–052–00024–8) ...... 61.00 Jan. 1, 2004 §§ 1.61–1.169 ...... (869–052–00080–9) ...... 63.00 Apr. 1, 2004 200–End ...... (869–052–00025–6) ...... 58.00 Jan. 1, 2004 §§ 1.170–1.300 ...... (869–052–00081–7) ...... 60.00 Apr. 1, 2004 10 Parts: §§ 1.301–1.400 ...... (869–052–00082–5) ...... 46.00 Apr. 1, 2004 1–50 ...... (869–052–00026–4) ...... 61.00 Jan. 1, 2004 §§ 1.401–1.440 ...... (869–052–00083–3) ...... 62.00 Apr. 1, 2004 51–199 ...... (869–052–00027–2) ...... 58.00 Jan. 1, 2004 §§ 1.441–1.500 ...... (869–052–00084–1) ...... 57.00 Apr. 1, 2004 200–499 ...... (869–052–00028–1) ...... 46.00 Jan. 1, 2004 §§ 1.501–1.640 ...... (869–052–00085–0) ...... 49.00 Apr. 1, 2004 500–End ...... (869–052–00029–9) ...... 62.00 Jan. 1, 2004 §§ 1.641–1.850 ...... (869–052–00086–8) ...... 60.00 Apr. 1, 2004 §§ 1.851–1.907 ...... (869–052–00087–6) ...... 61.00 Apr. 1, 2004 11 ...... (869–052–00030–2) 41.00 Feb. 3, 2004 §§ 1.908–1.1000 ...... (869–052–00088–4) ...... 60.00 Apr. 1, 2004 12 Parts: §§ 1.1001–1.1400 ...... (869–052–00089–2) ...... 61.00 Apr. 1, 2004 1–199 ...... (869–052–00031–1) ...... 34.00 Jan. 1, 2004 §§ 1.1401–1.1503–2A .... (869–052–00090–6) ...... 55.00 Apr. 1, 2004 200–219 ...... (869–052–00032–9) ...... 37.00 Jan. 1, 2004 §§ 1.1551–End ...... (869–052–00091–4) ...... 55.00 Apr. 1, 2004 220–299 ...... (869–052–00033–7) ...... 61.00 Jan. 1, 2004 2–29 ...... (869–052–00092–2) ...... 60.00 Apr. 1, 2004 300–499 ...... (869–052–00034–5) ...... 47.00 Jan. 1, 2004 30–39 ...... (869–052–00093–1) ...... 41.00 Apr. 1, 2004 500–599 ...... (869–052–00035–3) ...... 39.00 Jan. 1, 2004 40–49 ...... (869–052–00094–9) ...... 28.00 Apr. 1, 2004 600–899 ...... (869–052–00036–1) ...... 56.00 Jan. 1, 2004 50–299 ...... (869–052–00095–7) ...... 41.00 Apr. 1, 2004 900–End ...... (869–052–00037–0) ...... 50.00 Jan. 1, 2004 300–499 ...... (869–052–00096–5) ...... 61.00 Apr. 1, 2004

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Title Stock Number Price Revision Date Title Stock Number Price Revision Date 500–599 ...... (869–052–00097–3) ...... 12.00 5Apr. 1, 2004 72–80 ...... (869–052–00151–1) ...... 62.00 July 1, 2004 600–End ...... (869–052–00098–1) ...... 17.00 Apr. 1, 2004 81–85 ...... (869–052–00152–0) ...... 60.00 July 1, 2004 27 Parts: 86 (86.1–86.599–99) ...... (869–052–00153–8) ...... 58.00 July 1, 2004 86 (86.600–1–End) ...... (869–052–00154–6) ...... 50.00 July 1, 2004 1–199 ...... (869–052–00099–0) ...... 64.00 Apr. 1, 2004 87–99 ...... (869–052–00155–4) ...... 60.00 July 1, 2004 200–End ...... (869–052–00100–7) ...... 21.00 Apr. 1, 2004 100–135 ...... (869–052–00156–2) ...... 45.00 July 1, 2004 28 Parts: ...... 136–149 ...... (869–052–00157–1) ...... 61.00 July 1, 2004 0–42 ...... (869–052–00101–5) ...... 61.00 July 1, 2004 150–189 ...... (869–052–00158–9) ...... 50.00 July 1, 2004 43–End ...... (869–052–00102–3) ...... 60.00 July 1, 2004 190–259 ...... (869–052–00159–7) ...... 39.00 July 1, 2004 29 Parts: 260–265 ...... (869–052–00160–1) ...... 50.00 July 1, 2004 0–99 ...... (869–052–00103–1) ...... 50.00 July 1, 2004 266–299 ...... (869–052–00161–9) ...... 50.00 July 1, 2004 100–499 ...... (869–052–00104–0) ...... 23.00 July 1, 2004 300–399 ...... (869–052–00162–7) ...... 42.00 July 1, 2004 8 500–899 ...... (869–052–00105–8) ...... 61.00 July 1, 2004 400–424 ...... (869–052–00163–5) ...... 56.00 July 1, 2004 900–1899 ...... (869–052–00106–6) ...... 36.00 July 1, 2004 425–699 ...... (869–052–00164–3) ...... 61.00 July 1, 2004 1900–1910 (§§ 1900 to 700–789 ...... (869–052–00165–1) ...... 61.00 July 1, 2004 1910.999) ...... (869–052–00107–4) ...... 61.00 July 1, 2004 790–End ...... (869–052–00166–0) ...... 61.00 July 1, 2004 1910 (§§ 1910.1000 to 41 Chapters: end) ...... (869–052–00108–2) ...... 46.00 8July 1, 2004 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 1911–1925 ...... (869–052–00109–1) ...... 30.00 July 1, 2004 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 1926 ...... (869–052–00110–4) ...... 50.00 July 1, 2004 3–6 ...... 14.00 3 July 1, 1984 1927–End ...... (869–052–00111–2) ...... 62.00 July 1, 2004 7 ...... 6.00 3 July 1, 1984 8 ...... 4.50 3 July 1, 1984 30 Parts: 9 ...... 13.00 3 July 1, 1984 1–199 ...... (869–052–00112–1) ...... 57.00 July 1, 2004 10–17 ...... 9.50 3 July 1, 1984 200–699 ...... (869–052–00113–9) ...... 50.00 July 1, 2004 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 700–End ...... (869–052–00114–7) ...... 58.00 July 1, 2004 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 31 Parts: 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 0–199 ...... (869–052–00115–5) ...... 41.00 July 1, 2004 19–100 ...... 13.00 3 July 1, 1984 200–End ...... (869–052–00116–3) ...... 65.00 July 1, 2004 1–100 ...... (869–052–00167–8) ...... 24.00 July 1, 2004 32 Parts: 101 ...... (869–052–00168–6) ...... 21.00 July 1, 2004 1–39, Vol. I ...... 15.00 2 July 1, 1984 102–200 ...... (869–052–00169–4) ...... 56.00 July 1, 2004 1–39, Vol. II ...... 19.00 2 July 1, 1984 201–End ...... (869–052–00170–8) ...... 24.00 July 1, 2004 1–39, Vol. III ...... 18.00 2 July 1, 1984 42 Parts: 1–190 ...... (869–052–00117–1) ...... 61.00 July 1, 2004 1–399 ...... (869–050–00169–1) ...... 60.00 Oct. 1, 2003 191–399 ...... (869–052–00118–0) ...... 63.00 July 1, 2004 *400–429 ...... (869–052–00172–4) ...... 63.00 Oct. 1, 2004 400–629 ...... (869–052–00119–8) ...... 50.00 8July 1, 2004 430–End ...... (869–050–00171–3) ...... 64.00 Oct. 1, 2003 630–699 ...... (869–052–00120–1) ...... 37.00 7July 1, 2004 700–799 ...... (869–052–00121–0) ...... 46.00 July 1, 2004 43 Parts: 800–End ...... (869–052–00122–8) ...... 47.00 July 1, 2004 1–999 ...... (869–050–00172–1) ...... 55.00 Oct. 1, 2003 1000–end ...... (869–050–00173–0) ...... 62.00 Oct. 1, 2003 33 Parts: 1–124 ...... (869–052–00123–6) ...... 57.00 July 1, 2004 44 ...... (869–050–00174–8) ...... 50.00 Oct. 1, 2003 125–199 ...... (869–052–00124–4) ...... 61.00 July 1, 2004 45 Parts: 200–End ...... (869–052–00125–2) ...... 57.00 July 1, 2004 *1–199 ...... (869–052–00177–5) ...... 60.00 Oct. 1, 2004 34 Parts: *200–499 ...... (869–052–00178–3) ...... 34.00 Oct. 1, 2004 1–299 ...... (869–052–00126–1) ...... 50.00 July 1, 2004 500–1199 ...... (869–050–00177–2) ...... 50.00 Oct. 1, 2003 300–399 ...... (869–052–00127–9) ...... 40.00 July 1, 2004 1200–End ...... (869–050–00178–1) ...... 60.00 Oct. 1, 2003 400–End ...... (869–052–00128–7) ...... 61.00 July 1, 2004 46 Parts: 35 ...... (869–052–00129–5) ...... 10.00 6July 1, 2004 1–40 ...... (869–050–00179–9) ...... 46.00 Oct. 1, 2003 41–69 ...... (869–050–00180–2) ...... 39.00 Oct. 1, 2003 36 Parts 70–89 ...... (869–050–00181–1) ...... 14.00 Oct. 1, 2003 1–199 ...... (869–052–00130–9) ...... 37.00 July 1, 2004 90–139 ...... (869–050–00182–9) ...... 44.00 Oct. 1, 2003 200–299 ...... (869–052–00131–7) ...... 37.00 July 1, 2004 140–155 ...... (869–050–00183–7) ...... 25.00 Oct. 1, 2003 300–End ...... (869–052–00132–5) ...... 61.00 July 1, 2004 156–165 ...... (869–050–00184–5) ...... 34.00 Oct. 1, 2003 37 ...... (869–052–00133–3) ...... 58.00 July 1, 2004 166–199 ...... (869–050–00185–3) ...... 46.00 Oct. 1, 2003 200–499 ...... (869–050–00186–1) ...... 39.00 Oct. 1, 2003 38 Parts: 500–End ...... (869–050–00187–0) ...... 25.00 Oct. 1, 2003 0–17 ...... (869–052–00134–1) ...... 60.00 July 1, 2004 18–End ...... (869–052–00135–0) ...... 62.00 July 1, 2004 47 Parts: 0–19 ...... (869–050–00188–8) ...... 61.00 Oct. 1, 2003 39 ...... (869–052–00136–8) ...... 42.00 July 1, 2004 20–39 ...... (869–050–00189–6) ...... 45.00 Oct. 1, 2003 40 Parts: 40–69 ...... (869–050–00190–0) ...... 39.00 Oct. 1, 2003 1–49 ...... (869–052–00137–6) ...... 60.00 July 1, 2004 70–79 ...... (869–050–00191–8) ...... 61.00 Oct. 1, 2003 50–51 ...... (869–052–00138–4) ...... 45.00 July 1, 2004 80–End ...... (869–050–00192–6) ...... 61.00 Oct. 1, 2003 52 (52.01–52.1018) ...... (869–052–00139–2) ...... 60.00 July 1, 2004 48 Chapters: 52 (52.1019–End) ...... (869–052–00140–6) ...... 61.00 July 1, 2004 1 (Parts 1–51) ...... (869–050–00193–4) ...... 63.00 Oct. 1, 2003 53–59 ...... (869–052–00141–4) ...... 31.00 July 1, 2004 1 (Parts 52–99) ...... (869–050–00194–2) ...... 50.00 Oct. 1, 2003 60 (60.1–End) ...... (869–052–00142–2) ...... 58.00 July 1, 2004 2 (Parts 201–299) ...... (869–050–00195–1) ...... 55.00 Oct. 1, 2003 60 (Apps) ...... (869–052–00143–1) ...... 57.00 July 1, 2004 3–6 ...... (869–050–00196–9) ...... 33.00 Oct. 1, 2003 61–62 ...... (869–052–00144–9) ...... 45.00 July 1, 2004 7–14 ...... (869–050–00197–7) ...... 61.00 Oct. 1, 2003 63 (63.1–63.599) ...... (869–052–00145–7) ...... 58.00 July 1, 2004 15–28 ...... (869–050–00198–5) ...... 57.00 Oct. 1, 2003 63 (63.600–63.1199) ...... (869–052–00146–5) ...... 50.00 July 1, 2004 29–End ...... (869–050–00199–3) ...... 38.00 9Oct. 1, 2003 63 (63.1200–63.1439) .... (869–052–00147–3) ...... 50.00 July 1, 2004 63 (63.1440–63.8830) .... (869–052–00148–1) ...... 64.00 July 1, 2004 49 Parts: 64–71 ...... (869–052–00150–3) ...... 29.00 July 1, 2004 1–99 ...... (869–050–00200–1) ...... 60.00 Oct. 1, 2003

VerDate jul 14 2003 20:57 Nov 19, 2004 Jkt 205001 PO 00000 Frm 00002 Fmt 4721 Sfmt 4721 E:\FR\FM\22NOCL.LOC 22NOCL Federal Register / Vol. 69, No. 224 / Monday, November 22, 2004 / Reader Aids ix

Title Stock Number Price Revision Date 100–185 ...... (869–050–00201–9) ...... 63.00 Oct. 1, 2003 186–199 ...... (869–050–00202–7) ...... 20.00 Oct. 1, 2003 200–399 ...... (869–050–00203–5) ...... 64.00 Oct. 1, 2003 400–599 ...... (869–050–00204–3) ...... 63.00 Oct. 1, 2003 600–999 ...... (869–052–00207–1) ...... 19.00 Oct. 1, 2004 1000–1199 ...... (869–050–00206–0) ...... 26.00 Oct. 1, 2003 1200–End ...... (869–048–00207–8) ...... 33.00 Oct. 1, 2003 50 Parts: 1–16 ...... (869–050–00208–6) ...... 11.00 Oct. 1, 2003 17.1–17.95 ...... (869–050–00209–4) ...... 62.00 Oct. 1, 2003 17.96–17.99(h) ...... (869–050–00210–8) ...... 61.00 Oct. 1, 2003 17.99(i)–end ...... (869–050–00211–6) ...... 50.00 Oct. 1, 2003 18–199 ...... (869–050–00212–4) ...... 42.00 Oct. 1, 2003 200–599 ...... (869–050–00213–2) ...... 44.00 Oct. 1, 2003 600–End ...... (869–050–00214–1) ...... 61.00 Oct. 1, 2003 CFR Index and Findings Aids ...... (869–052–00049–3) ...... 62.00 Jan. 1, 2004 Complete 2004 CFR set ...... 1,342.00 2004 Microfiche CFR Edition: Subscription (mailed as issued) ...... 325.00 2004 Individual copies ...... 2.00 2004 Complete set (one-time mailing) ...... 298.00 2003 Complete set (one-time mailing) ...... 298.00 2002 1 Because Title 3 is an annual compilation, this volume and all previous volumes should be retained as a permanent reference source. 2 The July 1, 1985 edition of 32 CFR Parts 1–189 contains a note only for Parts 1–39 inclusive. For the full text of the Defense Acquisition Regulations in Parts 1–39, consult the three CFR volumes issued as of July 1, 1984, containing those parts. 3 The July 1, 1985 edition of 41 CFR Chapters 1–100 contains a note only for Chapters 1 to 49 inclusive. For the full text of procurement regulations in Chapters 1 to 49, consult the eleven CFR volumes issued as of July 1, 1984 containing those chapters. 4 No amendments to this volume were promulgated during the period January 1, 2003, through January 1, 2004. The CFR volume issued as of January 1, 2002 should be retained. 5 No amendments to this volume were promulgated during the period April 1, 2000, through April 1, 2004. The CFR volume issued as of April 1, 2000 should be retained. 6 No amendments to this volume were promulgated during the period July 1, 2000, through July 1, 2004. The CFR volume issued as of July 1, 2000 should be retained. 7 No amendments to this volume were promulgated during the period July 1, 2002, through July 1, 2004. The CFR volume issued as of July 1, 2002 should be retained. 8 No amendments to this volume were promulgated during the period July 1, 2003, through July 1, 2004. The CFR volume issued as of July 1, 2003 should be retained. 9 No amendments to this volume were promulgated during the period October 1, 2001, through October 1, 2003. The CFR volume issued as of October 1, 2001 should be retained.

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