12–7–04 Tuesday Vol. 69 No. 234 Dec. 7, 2004

Pages 70537–70870

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i II Federal Register / Vol. 69, No. 234 / Tuesday, December 7, 2004

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Contents Federal Register Vol. 69, No. 234

Tuesday, December 7, 2004

Agriculture Department Committee for the Implementation of Textile Agreements See Forest Service NOTICES NOTICES Textile and apparel categories: Agency information collection activities; proposals, Chinese imports; safeguard actions, 70661–70662 submissions, and approvals, 70625–70626 Customs and Border Protection Bureau Antitrust Division NOTICES NOTICES Agency information collection activities; proposals, National cooperative research notifications: submissions, and approvals, 70698–70701 Automotive Lift Institute; correction, 70752 Defense Department Antitrust Modernization Commission See Army Department NOTICES Drug Enforcement Administration Meetings, 70627 PROPOSED RULES Controlled substances; manufacturers, distributors, and Army Department dispensers; registration: NOTICES Individual practitioner registration requirements; Patent licenses; non-exclusive, exclusive, or partially clarification, 70576–70577 exclusive: Collapsing and telescoping baffles for stirred vessels, Economic Analysis Bureau 70662 RULES Direct investment surveys: Census Bureau BE-10; U.S. direct investment abroad; benchmark survey, NOTICES 70543–70546 Agency information collection activities; proposals, submissions, and approvals, 70627–70631 Education Department NOTICES Centers for Disease Control and Prevention Agency information collection activities; proposals, NOTICES submissions, and approvals, 70662–70663 Grants and cooperative agreements; availability, etc.: Environmental Health Specialist Network, 70696 Election Assistance Commission NOTICES Children and Families Administration Meetings; Sunshine Act, 70663 NOTICES Employment and Training Administration Agency information collection activities; proposals, NOTICES submissions, and approvals, 70696–70697 Adjustment assistance: 3M Center, 70706 Civil Rights Commission Accountemps, 70706 NOTICES Artisan Software Tools, Inc., 70706 Meetings; State advisory committees: Atlas Copco Compressors, Inc., 70706–70707 Western Region, 70627 Cherry Electrical Products, 70707 Meetings; Sunshine Act, 70627 Delta Energy Systems, Inc., 70707 Fleetguard Corp., 70707 Coast Guard Sony Electronics, Inc., 70708 RULES Technical Associates, 70708 Regattas and marine parades: Technicon Engineering, 70708–70709 Eastport Yacht Club Lights Parade, 70551–70552 New Year’s Eve Celebration; Patapsco River, MD, 70552 Energy Department Olde Towne Holiday Music Festival Fireworks Show, See Federal Energy Regulatory Commission 70552 PROPOSED RULES Environmental Protection Agency Regattas and marine parades: RULES Severn River, MD; marine events, 70578–70580 Toxic substances: Preliminary assessment information reporting; addition of Commerce Department chemicals, 70552–70557 See Census Bureau NOTICES See Economic Analysis Bureau Agency information collection activities; proposals, See Industry and Security Bureau submissions, and approvals, 70680–70683 See International Trade Administration Reports and guidance documents; availability, etc.: See National Oceanic and Atmospheric Administration World Trade Center; indoor environment impacts; See Patent and Trademark Office sampling program, 70683–70684

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Water pollution control: Federal Motor Carrier Safety Administration National Pollutant Discharge Elimination System— NOTICES Concentrated animal feeding operations in New Mexico Meetings: and Oklahoma; general permit for discharges, Office of Research and Technology Forum, 70748 70684–70687 Federal Reserve System NOTICES Export-Import Bank Meetings; Sunshine Act, 70696 NOTICES Agency information collection activities; proposals, Fish and Wildlife Service submissions, and approvals, 70687–70695 PROPOSED RULES Endangered and threatened species: Findings on petitions, etc.— Federal Aviation Administration Swallowtail butterflies (seven foreign species), 70580– RULES 70589 Airworthiness directives: NOTICES Airbus, 70537–70539 Endangered and threatened species and marine mammal Boeing, 70539–70541 permit applications, 70703 Class E airspace, 70541–70542 Environmental statements; notice of intent: Control areas, 70542–70543 Tetlin National Wildlife Refuge, AK; conservation plan, PROPOSED RULES 70704–70705 Airworthiness directives: Marine mammal permit applications, 70705 Airbus, 70568–70571 BAE Systems (Operations) Ltd., 70564–70566 Forest Service Boeing, 70574–70575 NOTICES Bombardier, 70566–70568, 70571–70574 Agency information collection activities; proposals, NOTICES submissions, and approvals, 70626–70627 Exemption petitions; summary and disposition; correction, 70747–70748 Health and Human Services Department See Centers for Disease Control and Prevention Federal Communications Commission See Children and Families Administration RULES See National Institutes of Health Industrial, scientific, and medical equipment: Homeland Security Department RF (radio frequency) lighting devices, 70562–70563 See Coast Guard See Customs and Border Protection Bureau Federal Energy Regulatory Commission NOTICES Housing and Urban Development Department Environmental statements; availability, etc.: RULES KeySpan LNG, L.P., et al., 70669–70670 Community development block grants: Questar Pipeline Co., 70670–70671 Metropolitan city definition and other conforming Environmental statements; notice of intent: amendments, 70863–70865 Starks Gas Storage Project, L.L.C., 70672–70674 PROPOSED RULES Hydroelectric applications, 70674–70678 Inspector General Office: Meetings: Subpoenas and production in response to subpoenas or Market based rates for public utilities; technical demands of courts or other authorities, 70867–70870 NOTICES conference agenda, 70678–70679 Agency information collection activities; proposals, Martimes & Northeast Pipeline, LLC; settlement submissions, and approvals, 70701–70703 conference, 70679 Midwest Independent Transmission System Operator, Industry and Security Bureau Inc., 70679 PROPOSED RULES Southwest Power Pool Board of Directors and Members Chemical Weapons Convention Regulations: Committee et al., 70679–70680 Requirements update and clarification, 70753–70809 Preliminary permits surrender: Symbiotics, LLC, et al., 70680 Interior Department Applications, hearings, determinations, etc.: See Fish and Wildlife Service Alliance Pipeline L. P., 70663–70664 See Land Management Bureau ANR Pipeline Co., 70664 RULES CenterPoint Energy Gas Transmission Co., 70664 Financial assistance, local governments: Columbia Gas Transmission Corp., 70664–70665 Payment in Lieu of Taxes Program; operating Freebird Gas Storage, LLC, 70665 responsibility transferred from Land Management Iroquois Gas Transmission System, L.P., 70665–70666 Bureau, 70557–70562 ISO New England, Inc., 70666–70667 North Baja Pipeline, LLC, 70667 Internal Revenue Service Northern Natural Gas Co., 70667–70668 RULES Southern Star Central Gas Pipeline, Inc., 70668 Income taxes: Texas Eastern Transmission, LP, 70669 Statutory stock options Viking Gas Transmission Co., 70669 Correction, 70550–70551

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Income taxes, etc.: Missouri, 70705 Automatic time extension to file certain information returns and exempt organization returns, 70547– Mine Safety and Health Administration 70550 RULES PROPOSED RULES Coal mine safety and health: Income taxes: Underground mines— Labor and personal services; source of compensation Electric motor-driven mine equipment and accessories Public hearing, 70578 and high-voltage longwall equipment standards; NOTICES correction, 70752 Agency information collection activities; proposals, submissions, and approvals, 70750 National Institutes of Health Income taxes: NOTICES Railroad employees, employers, and employee Agency information collection activities; proposals, representatives; 2005 CY tier 2 tax rates, 70751 submissions, and approvals, 70697–70698 International Trade Administration NOTICES National Oceanic and Atmospheric Administration Agency information collection activities; proposals, PROPOSED RULES submissions, and approvals, 70631–70632 Fishery conservation and management: Antidumping: Alaska; fisheries of Exclusive Economic Zone— Brake rotors from— Aleutian Islands pollock, 70589–70605 China, 70632–70633 Gulf of Alaska groundfish, 70605–70624 Corrosion-resistant carbon steel flat products from— Japan, 70633–70637 National Science Foundation Fresh garlic from— NOTICES China, 70638–70644 Antarctic Conservation Act of 1978; permit applications, Hot-rolled carbon steel flat products from— etc., 70711–70712 Romania, 70644–70649 Petroleum wax candles from— Nuclear Regulatory Commission China, 70649 NOTICES Pure magnesium from— Meetings; Sunshine Act, 70712 Canada, 70649–70651 Operating licenses, amendments; no significant hazards Stainless steel bar from— considerations; biweekly notices, 70712–70727 Germany, 70651–70655 Countervailing duties: Occupational Safety and Health Administration Hot-rolled flat-rolled carbon-quality steel from— NOTICES Brazil, 70655–70657 Agency information collection activities; proposals, Pasta from— submissions, and approvals, 70709–70711 Italy, 70657–70659 North American Free Trade Agreement (NAFTA); Parole Commission binational panel reviews: NOTICES Soft wood lumber products from— Meetings; Sunshine Act, 70706 Canada, 70659–70660 Patent and Trademark Office International Trade Commission NOTICES NOTICES Patent fees; changes under 2005 Consolidated Import investigations: Appropriations Act; advance notice to public, 70660– Sebacic acid from— 70661 China, 70705–70706 Research and Special Programs Administration Justice Department NOTICES See Antitrust Division Pipeline safety: See Drug Enforcement Administration See Parole Commission Waiver proceedings— Duke Energy Gas Transmission Co., 70748–70750 Labor Department See Employment and Training Administration Securities and Exchange Commission See Mine Safety and Health Administration RULES See Occupational Safety and Health Administration Securities: Ownership by securities intermediaries; issuer Land Management Bureau restrictions or prohibitions, 70851–70862 RULES NOTICES Financial assistance, local governments: Agency information collection activities; proposals, Payment in Lieu of Taxes Program; operating submissions, and approvals, 70727–70728 responsibility transfered to Interior Department, Self-regulatory organizations; proposed rule changes: 70557–70562 Chicago Board Options Exchange, Inc., 70728–70731 NOTICES Municipal Securities Rulemaking Board, 70731–70735 Survey plat filings: National Association of Securities Dealers, Inc., 70735– Minnesota, 70705 70746

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State Department Separate Parts In This Issue NOTICES Art objects; importation for exhibition: Part II Andre Kertesz, 70746–70747 Commerce Department, Industry and Security Bureau, Rembrandt’s Late Religious Portraits, 70747 70753–70809 Tall Trees at the Jas de Bouffan, 70747 Part III State Justice Institute State Justice Institute, 70811–70849 NOTICES Reports and guidance documents; availability, etc.: Part IV Grants, cooperative agreements, and contracts; guidelines, Securities and Exchange Commission, 70851–70862 70811–70849 Part V Housing and Urban Development Department, 70863–70865 Textile Agreements Implementation Committee See Committee for the Implementation of Textile Part VI Agreements Housing and Urban Development Department, 70867–70870 Transportation Department See Federal Aviation Administration Reader Aids See Federal Motor Carrier Safety Administration Consult the Reader Aids section at the end of this issue for See Research and Special Programs Administration phone numbers, online resources, finding aids, reminders, NOTICES and notice of recently enacted public laws. Aviation proceedings: Agreements filed; weekly receipts, 70747 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.

14 CFR 679 (2 documents) ...... 70589, 39 (2 documents) ...... 70537, 70605 70739 71 (3 documents) ...... 70541, 70542 Proposed Rules: 39 (5 documents) ...... 70564, 70566, 70568, 70571, 70574 15 CFR 806...... 70543 Proposed Rules: 710...... 70754 711...... 70754 712...... 70754 713...... 70754 714...... 70754 715...... 70754 716...... 70754 717...... 70754 718...... 70754 719...... 70754 720...... 70754 721...... 70754 722...... 70754 723...... 70754 724...... 70754 725...... 70754 726...... 70754 727...... 70754 728...... 70754 729...... 70754 17 CFR 240...... 70852 21 CFR Proposed Rules: 1301...... 70576 24 CFR 570...... 70864 Proposed Rules: 2004...... 70868 26 CFR 1 (2 documents) ...... 70547, 70550 25...... 70547 31...... 70547 53...... 70547 55...... 70547 156...... 70547 301...... 70547 602 (2 documents) ...... 70547, 70550 Proposed Rules: 1...... 70578 30 CFR 18...... 70752 33 CFR 100 (3 documents) ...... 70551, 70552 Proposed Rules: 100...... 70578 40 CFR 9...... 70552 712...... 70552 43 CFR 44...... 70557 1880...... 70557 47 CFR 18...... 70562 50 CFR Proposed Rules: 17...... 70580

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Rules and Regulations Federal Register Vol. 69, No. 234

Tuesday, December 7, 2004

This section of the FEDERAL REGISTER • Mail: Docket Management Facility; the AD docket shortly after the DMS contains regulatory documents having general U.S. Department of Transportation, 400 receives them. applicability and legal effect, most of which Seventh Street SW., Nassif Building, FOR FURTHER INFORMATION CONTACT: are keyed to and codified in the Code of Room PL–401, Washington, DC 20590. Technical information: Tim Dulin, Federal Regulations, which is published under • 50 titles pursuant to 44 U.S.C. 1510. Fax: (202) 493–2251. Aerospace Engineer, International • Hand Delivery: Room PL–401 on Branch, ANM–116, FAA, Transport The Code of Federal Regulations is sold by the plaza level of the Nassif Building, Airplane Directorate, 1601 Lind the Superintendent of Documents. Prices of 400 Seventh Street SW., Washington, Avenue, SW., Renton, Washington new books are listed in the first FEDERAL DC, between 9 a.m. and 5 p.m., Monday 98055–4056; telephone (425) 227–2141; REGISTER issue of each week. through Friday, except Federal holidays. fax (425) 227–1149. For service information identified in Plain language information: Marcia this AD, contact Airbus, 1 Rond Point Walters, [email protected]. DEPARTMENT OF TRANSPORTATION Maurice Bellonte, 31707 Blagnac Cedex, SUPPLEMENTARY INFORMATION: The Federal Aviation Administration France. You can examine this Direction Ge´ne´rale de l’Aviation Civile information at the National Archives (DGAC), which is the airworthiness 14 CFR Part 39 and Records Administration (NARA). authority for France, notified the FAA For information on the availability of that an unsafe condition may exist on [Docket No. FAA–2004–19817; Directorate this material at NARA, call (202) 741– certain Airbus Model A318, A319, Identifier 2004–NM–237–AD; Amendment 6030, or go to: http://www.archives.gov/ A320, and A321 series airplanes. The 39–13896; AD 2004–25–08] federal_register/ DGAC advises that an Airbus Model RIN 2120–AA64 code_of_federal_regulations/ A340 series airplane lost the integrated ibr_locations.html. standby instrument system (ISIS), then, Airworthiness Directives; Airbus Model You can examine the contents of this during the same flight, lost all electronic A318, A319, A320, and A321 Series AD docket on the Internet at http:// instrument system (EIS) display units. Airplanes dms.dot.gov, or in person at the Docket Investigation revealed that the ISIS AGENCY: Federal Aviation Management Facility, U.S. Department failure is caused by a time-counter fault Administration (FAA), DOT. of Transportation, 400 Seventh Street that occurs after 145 hours of SW., Room PL–401, on the plaza level ACTION: Final rule; request for continuous power supply to the ISIS. comments. of the Nassif Building, Washington, DC. Loss of the ISIS, if combined with loss This docket number is FAA–2004– of all EIS display units, could reduce SUMMARY: The FAA is adopting a new 19817; the directorate identifier for this the flightcrew’s situational awareness airworthiness directive (AD) for certain docket is 2004–NM–237–AD. and contribute to loss of control of the Airbus Model A318, A319, A320, and Docket Management System (DMS) airplane or impact with obstacles or A321 series airplanes. This AD requires terrain. regularly performing a complete The FAA has implemented new The subject ISIS on certain Airbus electrical shutdown of the airplane to procedures for maintaining AD dockets Model A340 series airplanes is also reset the integrated standby instrument electronically. As of May 17, 2004, new installed on certain Airbus Model A318, system (ISIS). This AD is prompted by AD actions are posted on DMS and A319, A320, and A321 series airplanes. reports indicating that an airplane lost assigned a docket number. We track Therefore, airplanes of all of these the ISIS, then, during the same flight, each action and assign a corresponding models may be subject to the identified lost all electronic instrument system directorate identifier. The DMS AD unsafe condition. (EIS) display units. We are issuing this docket number is in the form ‘‘Docket The DGAC has issued French AD to prevent loss of the ISIS, which, No. FAA–2004–99999.’’ The Transport Emergency Airworthiness Directive UF– if combined with loss of all EIS display Airplane Directorate identifier is in the 2004–168, dated October 20, 2004, to units, could reduce the flightcrew’s form ‘‘Directorate Identifier 2004–NM– ensure the continued airworthiness of situational awareness and contribute to 999–AD.’’ Each DMS AD docket also these airplanes in France. loss of control of the airplane or impact lists the directorate identifier (‘‘Old with obstacles or terrain. Docket Number’’) as a cross-reference FAA’s Determination and Requirements of This AD DATES: Effective December 22, 2004. for searching purposes. We must receive comments on this These airplane models are Examining the Docket AD by February 7, 2005. manufactured in France and are type ADDRESSES: Use one of the following You can examine the AD docket on certificated for operation in the United addresses to submit comments on this the Internet at http://dms.dot.gov, or in States under the provisions of section AD. person at the Docket Management 21.29 of the Federal Aviation • DOT Docket Web site: Go to Facility office between 9 a.m. and 5 Regulations (14 CFR 21.29) and the http://dms.dot.gov and follow the p.m., Monday through Friday, except applicable bilateral airworthiness instructions for sending your comments Federal holidays. The Docket agreement. According to this bilateral electronically. Management Facility office (telephone airworthiness agreement, the DGAC has • Government-wide rulemaking Web (800) 647–5227) is located on the plaza kept us informed of the situation site: Go to http://www.regulations.gov level of the Nassif Building at the DOT described above. We have examined the and follow the instructions for sending street address stated in the ADDRESSES DGAC’s findings, evaluated all pertinent your comments electronically. section. Comments will be available in information, and determined that we

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need to issue an AD for products of this 2004–NM–237–AD’’ at the beginning of responsibilities among the various type design that are certificated for your comments. We specifically invite levels of government. operation in the United States. comments on the overall regulatory, For the reasons discussed above, I Therefore, we are issuing this AD to economic, environmental, and energy certify that the regulation: prevent loss of the ISIS, which, if aspects of the AD. We will consider all 1. Is not a ‘‘significant regulatory combined with loss of all EIS display comments received by the closing date action’’ under Executive Order 12866; units, could reduce the flightcrew’s and may amend the AD in light of those 2. Is not a ‘‘significant rule’’ under the situational awareness and contribute to comments. DOT Regulatory Policies and Procedures loss of control of the airplane or impact We will post all comments we (44 FR 11034, February 26, 1979); and with obstacles or terrain. This AD receive, without change, to http:// 3. Will not have a significant requires regularly performing a dms.dot.gov, including any personal economic impact, positive or negative, complete electrical shutdown of the information you provide. We will also on a substantial number of small entities airplane to reset the ISIS. post a report summarizing each under the criteria of the Regulatory substantive verbal contact with FAA Flexibility Act. Differences Between the AD and French personnel concerning this AD. Using the Emergency Airworthiness Directive We prepared a regulatory evaluation search function of our docket Web site, of the estimated costs to comply with This AD differs from the French anyone can find and read the comments this AD. See the ADDRESSES section for Emergency Airworthiness Directive in in any of our dockets, including the a location to examine the regulatory that this AD does not allow resetting the name of the individual who sent the evaluation. circuit breaker as a means of resetting comment (or signed the comment on the ISIS. This AD instead requires a behalf of an association, business, labor List of Subjects in 14 CFR Part 39 complete electrical shutdown of the union, etc.). You can review the DOT’s Air transportation, Aircraft, Aviation airplane, which the French Emergency complete Privacy Act Statement in the safety, Safety. Airworthiness Directive provides as an Federal Register published on April 11, alternative means of resetting the ISIS. 2000 (65 FR 19477–78), or you can visit Adoption of the Amendment The decision to not allow resetting the http://dms.dot.gov. I Accordingly, under the authority circuit breaker is based on FAA policy We are reviewing the writing style we delegated to me by the Administrator, that pulling circuit breakers is not an currently use in regulatory documents. the FAA amends 14 CFR part 39 as acceptable means of routinely removing We are interested in your comments on follows: electrical power from airplane systems. whether the style of this document is This policy is based on the fact that use clear, and your suggestions to improve PART 39—AIRWORTHINESS of a circuit breaker as a switch will the clarity of our communications with DIRECTIVES degrade the ability of the circuit breaker you. You can get more information to trip at its rated current trip point. about plain language at http://www/ I 1. The authority citation for part 39 faa.gov/language and http:// continues to read as follows: Interim Action www.plainlanguage.gov. We consider this AD interim action. Authority: 49 U.S.C. 106(g), 40113, 44701. Authority for This Rulemaking We are currently considering requiring § 39.13 [Amended] the installation of an upgraded ISIS The FAA’s authority to issue rules I standard, which would eliminate the regarding aviation safety is found in 2. The FAA amends § 39.13 by adding need to regularly perform a complete Title 49 of the United States Code. the following new airworthiness electrical shutdown of the airplane. Subtitle I, Section 106 describes the directive (AD): However, the planned compliance time authority of the FAA Administrator. 2004–25–08 Airbus: Amendment 39–13896. for this installation would allow enough Subtitle VII, Aviation Programs, Docket No. FAA–2004–19817; time to provide notice and opportunity describes in more detail the scope of the Directorate Identifier 2004–NM–237–AD. for public comment on the merits of the agency’s authority. Effective Date This rulemaking is promulgated modification. (a) This AD becomes effective December under the authority described in subtitle 22, 2004. FAA’s Determination of the Effective VII, part A, subpart III, section 44701, Date ‘‘General requirements.’’ Under that Affected ADs An unsafe condition exists that section, the FAA is charged with (b) None. requires the immediate adoption of this promoting safe flight of civil aircraft in Applicability AD; therefore, providing notice and air commerce by prescribing regulations opportunity for public comment before for practices, methods, and procedures (c) This AD applies to Airbus Model A318, A319, A320, and A321 series airplanes, the AD is issued is impracticable, and the Administrator finds necessary for certificated in any category; on which Airbus good cause exists to make this AD safety in air commerce. This regulation Modification 27620 (reference Airbus Service effective in less than 30 days. is within the scope of that authority Bulletin A320–34–1261) has been done. because it addresses an unsafe condition Comments Invited that is likely to exist or develop on Unsafe Condition This AD is a final rule that involves products identified in this AD. (d) This AD was prompted by a report requirements that affect flight safety and indicating that an airplane lost the integrated was not preceded by notice and an Regulatory Findings standby instrument system (ISIS), then, opportunity for public comment; We have determined that this AD will during the same flight, lost all electronic however, we invite you to submit any not have federalism implications under instrument system (EIS) display units. The FAA is issuing this AD to prevent loss of the relevant written data, views, or Executive Order 13132. This AD will ISIS, which, if combined with loss of all EIS arguments regarding this AD. Send your not have a substantial direct effect on display units, could reduce the flightcrew’s comments to an address listed under the States, on the relationship between situational awareness and contribute to loss ADDRESSES. Include ‘‘Docket No. FAA– the National Government and the States, of control of the airplane or impact with 2004–19817; Directorate Identifier or on the distribution of power and obstacles or terrain.

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Compliance Boeing Model 747–100, 747–100B, 747– Docket Management System (DMS) (e) You are responsible for having the 100B SUD, 747–200B, 747–200C, 747– The FAA has implemented new actions required by this AD performed within 200F, and 747–300 series airplanes; and procedures for maintaining AD dockets the compliance times specified, unless the Model 747SP and 747SR series actions have already been done. electronically. As of May 17, 2004, new airplanes. This AD requires revising the AD actions are posted on DMS and Requirement for Complete Electrical airplane flight manual to prohibit assigned a docket number. We track Shutdown operation of the autopilot/flight director each action and assign a corresponding (f) Within 3 days after the effective date of in command mode with performance directorate identifier. The DMS AD this AD, or within 5 days after the last ISIS management system selected on the docket number is in the form ‘‘Docket reset or complete electrical shutdown of the speed mode switch during cruise in No. FAA–2004–99999.’’ The Transport airplane, whichever is first, perform a reduced vertical separation minimum complete electrical shutdown of the airplane Airplane Directorate identifier is in the (RVSM) airspace. This AD is prompted form ‘‘Directorate Identifier 2004–NM– to reset the ISIS. Repeat the electrical by reports of unexpected autopilot shutdown of the airplane at intervals not to 999–AD.’’ Each DMS AD docket also exceed 5 days. disconnects induced by the passing of lists the directorate identifier (‘‘Old another airplane within 1,000 feet below Note 1: This AD does not allow resetting Docket Number’’) as a cross-reference the circuit breaker as a means of resetting the the airplane while they were operating for searching purposes. ISIS. in RVSM airspace. We are issuing this AD to prevent unexpected disconnect of Examining the Dockets Note 2: There is no terminating action the autopilot during operation in RVSM available at this time for the requirement to You can examine the AD docket on regularly perform a complete electrical airspace due to close passage of another the Internet at http://dms.dot.gov, or in shutdown of the airplane. airplane, which may result in altitude person at the Docket Management deviation, and consequently, could lead Facility office between 9 a.m. and 5 Alternative Methods of Compliance to a possible mid-air collision or a near p.m., Monday through Friday, except (AMOCs) miss with aggressive evasive action (by Federal holidays. The Docket (g) The Manager, International Branch, either or both airplanes). Aggressive Management Facility office (telephone ANM–116, Transport Airplane Directorate, maneuvering at cruise altitudes and (800) 647–5227) is located on the plaza FAA, has the authority to approve AMOCs airspeeds could result in loss of control level of the Nassif Building at the DOT for this AD, if requested in accordance with of the airplane and/or injury to the procedures found in 14 CFR 39.19. street address stated in the ADDRESSES passengers and crew. section. Comments will be available in Related Information DATES: Effective December 22, 2004. the AD docket shortly after the DMS (h) French Emergency Airworthiness We must receive comments on this receives them. Directive UF–2004–168, dated October 20, AD by February 7, 2005. FOR FURTHER INFORMATION CONTACT: 2004, also addresses the subject of this AD. ADDRESSES: Use one of the following Technical information: Samuel Slentz, Material Incorporated by Reference addresses to submit comments on this Aerospace Engineer, Systems and (i) None. AD. Equipment Branch, ANM–130S, FAA, Seattle Aircraft Certification Office, Issued in Renton, Washington, on • DOT Docket Web site: Go to 1601 Lind Avenue, SW., Renton, November 30, 2004. http://dms.dot.gov and follow the Washington 98055–4056; telephone Ali Bahrami, instructions for sending your comments (425) 917–6483; fax (425) 917–6590. Manager, Transport Airplane Directorate, electronically. Plain language information: Marcia Aircraft Certification Service. • Government-wide rulemaking Web Walters, [email protected]. [FR Doc. 04–26790 Filed 12–6–04; 8:45 am] site: Go to http://www.regulations.gov SUPPLEMENTARY INFORMATION: We have BILLING CODE 4910–13–P and follow the instructions for sending received reports of two separate your comments electronically. incidents in which a Boeing Model 747– • Mail: Docket Management Facility; DEPARTMENT OF TRANSPORTATION 200 airplane equipped with a U.S. Department of Transportation, 400 performance management system (PMS) Seventh Street SW., Nassif Building, Federal Aviation Administration had an unexpected autopilot disconnect room PL–401, Washington, DC 20590. induced by the passing of another • Fax: (202) 493–2251. airplane within 1,000 feet below the 14 CFR Part 39 • Hand Delivery: Room PL–401 on airplane while operating in reduced [Docket No. FAA–2004–19815; Directorate the plaza level of the Nassif Building, vertical separation minimum (RVSM) Identifier 2004–NM–215–AD; Amendment 400 Seventh Street SW., Washington, 39–13894; AD 2004–25–06] airspace. In both incidents, the PMS- DC, between 9 a.m. and 5 p.m., Monday equipped airplane lost 300 to 400 feet of RIN 2120–AA64 through Friday, except Federal holidays. altitude, causing it to come within For service information identified in approximately 650 feet of the other, Airworthiness Directives; Boeing this AD, contact Boeing Commercial lower aircraft (starting at 1,000 feet Model 747–100, 747–100B, 747–100B Airplanes, P.O. Box 3707, Seattle, separation), and received a traffic SUD, 747–200B, 747–200C, 747–200F, Washington 98124–2207. collision and avoidance system (TCAS) and 747–300 Series Airplanes; and You can examine the contents of this resolution advisory (RA) with Model 747SP and 747SR Series AD docket on the Internet at http:// instructions to ‘‘climb, climb.’’ Airplanes dms.dot.gov, or in person at the Docket The PMS installed in certain Boeing AGENCY: Federal Aviation Management Facility, U.S. Department Model 747 airplanes has an interlock Administration (FAA), DOT. of Transportation, 400 Seventh Street that is activated with radar altitude. ACTION: Final rule; request for SW., room PL–401, on the plaza level of This interlock disconnects the autopilot comments. the Nassif Building, Washington, DC. upon receipt of a valid radar altitude This docket number is FAA–2004– signal of less than 2,500 feet. Because SUMMARY: The FAA is adopting a new 19815; the directorate identifier for this there is no means to accurately airworthiness directive (AD) for certain docket is 2004–NM–215–AD. determine how the airplane is trimmed

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when using the PMS, it cannot be FAA’s Determination of the Effective Subtitle VII, Part A, Subpart III, Section predicted which direction the airplane Date 44701, ‘‘General requirements.’’ Under will fly or how far it will depart from An unsafe condition exists that that section, the FAA is charged with an assigned altitude. Unexpected requires the immediate adoption of this promoting safe flight of civil aircraft in disconnect of the autopilot during AD; therefore, providing notice and air commerce by prescribing regulations operation in RVSM airspace, if not opportunity for public comment before for practices, methods, and procedures corrected or if manual control is not the AD is issued is impracticable, and the Administrator finds necessary for promptly established, may result in good cause exists to make this AD safety in air commerce. This regulation altitude deviation, and consequently, effective in less than 30 days. is within the scope of that authority could lead to a possible mid-air because it addresses an unsafe condition collision or a near miss with aggressive Comments Invited that is likely to exist or develop on evasive action (by either or both This AD is a final rule that involves products identified in this AD. requirements that affect flight safety and airplanes). Aggressive maneuvering at Regulatory Findings cruise altitudes and airspeeds could was not preceded by notice and an result in loss of control of the airplane opportunity for public comment; We have determined that this AD will and/or injury to passengers and crew. however, we invite you to submit any not have federalism implications under relevant written data, views, or Executive Order 13132. This AD will FAA’s Determination and Requirements arguments regarding this AD. Send your not have a substantial direct effect on of This AD comments to an address listed under the States, on the relationship between ADDRESSES. Include ‘‘Docket No. FAA– the national Government and the States, The unsafe condition described 2004–19815; Directorate Identifier or on the distribution of power and previously is likely to exist or develop 2004–NM–215–AD’’ at the beginning of responsibilities among the various on other airplanes of the same type your comments. We specifically invite levels of government. design. Therefore, we are issuing this comments on the overall regulatory, For the reasons discussed above, I AD to prevent unexpected disconnect of economic, environmental, and energy certify that the regulation: the autopilot during operation in RVSM aspects of the AD. We will consider all 1. Is not a ‘‘significant regulatory airspace, which could result in altitude comments received by the closing date action’’ under Executive Order 12866; deviation causing a mid-air collision or and may amend the AD in light of those 2. Is not a ‘‘significant rule’’ under the a near miss with aggressive evasive comments. DOT Regulatory Policies and Procedures action (by either or both airplanes). We will post all comments we (44 FR 11034, February 26, 1979); and Aggressive maneuvering at cruise receive, without change, to http:// 3. Will not have a significant altitudes and airspeeds could cause the dms.dot.gov, including any personal economic impact, positive or negative, airplane to exceed its structural limits, information you provide. We will also on a substantial number of small entities which could result in loss of control of post a report summarizing each under the criteria of the Regulatory the airplane and/or injury to passengers substantive verbal contact with FAA Flexibility Act. and crew. This AD requires revising the personnel concerning this AD. Using the We prepared a regulatory evaluation airplane flight manual to prohibit search function of our docket Web site, of the estimated costs to comply with operation of the autopilot/flight director anyone can find and read the comments this AD. See the ADDRESSES section for in command mode with performance in any of our dockets, including the a location to examine the regulatory management system selected on the name of the individual who sent the evaluation. speed mode switch during cruise in comment (or signed the comment on RVSM airspace. behalf of an association, business, labor List of Subjects in 14 CFR Part 39 union, etc.). You can review the DOT’s Interim Action Air transportation, Aircraft, Aviation complete Privacy Act Statement in the safety, Safety. Federal Register published on April 11, We consider this AD interim action. If Adoption of the Amendment final action is later identified, we may 2000 (65 FR 19477–78), or you can visit consider further rulemaking then. http://dms.dot.gov. I Accordingly, under the authority We are reviewing the writing style we delegated to me by the Administrator, Changes to 14 CFR Part 39/Effect on the currently use in regulatory documents. the FAA amends 14 CFR part 39 as AD Relating to Special Flight Permits We are interested in your comments on follows: whether the style of this document is On July 10, 2002, we issued a new clear, and your suggestions to improve PART 39—AIRWORTHINESS version of 14 CFR part 39 (67 FR 47997, the clarity of our communications with DIRECTIVES July 22, 2002), which governs the FAA’s you. You can get more information airworthiness directives system. The about plain language at http://www/ I 1. The authority citation for part 39 regulation now includes material that faa.gov/language and http:// continues to read as follows: relates to altered products, special flight www.plainlanguage.gov. Authority: 49 U.S.C. 106(g), 40113, 44701. permits, and alternative methods of compliance (AMOC). This material is Authority for This Rulemaking § 39.13 [Amended] included in part 39, except that the The FAA’s authority to issue rules I 2. The FAA amends § 39.13 by adding office authorized to approve AMOCs is regarding aviation safety is found in the following new airworthiness identified in each individual AD. Title 49 of the United States Code. directive (AD): However, as amended, part 39 provides Subtitle I, Section 106 describes the for the FAA to add special requirements authority of the FAA Administrator. 2004–25–06 Boeing: Amendment 39–13894. for operating an airplane to a repair Docket No. FAA–2004–19815; Subtitle VII, Aviation Programs, Directorate Identifier 2004–NM–215–AD. facility to do the work required by an describes in more detail the scope of the airworthiness directive. For purposes of agency’s authority. Effective Date this AD, we have determined that such This rulemaking is promulgated (a) This AD becomes effective December a special flight permit is prohibited. under the authority described in 22, 2004.

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Affected ADs TABLE 1.—CERTAIN APPLICABLE AIR- Material Incorporated by Reference (b) None. PLANES BY VARIABLE NUMBERS— (i) None. Applicability Continued Issued in Renton, Washington, on November 30, 2004. (c) This AD applies to Boeing Model 747– RS265–RS268 inclusive. 100, 747–100B, 747–100B SUD, 747–200B, RS292. Ali Bahrami, 747–200C, 747–200F, and 747–300 series RS311–RS320 inclusive. Manager, Transport Airplane Directorate, airplanes; and Model 747SP and 747SR series RS699. Aircraft Certification Service. airplanes; certificated in any category; having RS701–RS703 inclusive. [FR Doc. 04–26792 Filed 12–6–04; 8:45 am] variable numbers listed in Table 1 of this AD RS711–RS713 inclusive. BILLING CODE 4910–13–P or modified in accordance with RS731. Supplemental Type Certificate SA960GL or RS732. SA1080EA–D; excluding airplanes on which RS741–RS743 inclusive. Boeing Service Bulletin 747–34–2294, dated RS771. DEPARTMENT OF TRANSPORTATION May 25, 1989, or Boeing Service Bulletin RS786. 747–34–2296, dated July 1, 1989, has been Federal Aviation Administration accomplished. Unsafe Condition 14 CFR Part 71 (d) This AD was prompted by reports of TABLE 1.—CERTAIN APPLICABLE unexpected autopilot disconnects induced by [Docket No. FAA–2004–19328; Airspace AIRPLANES BY VARIABLE NUMBERS the passing of another airplane within 1,000 Docket No. 04–ACE–57] feet below the airplane while they were RA521–RA528 inclusive. operating in reduced vertical separation Modification of Class E Airspace; RA532–RA535 inclusive. minimum (RVSM) airspace. The FAA is Nebraska City, NE RA537–RA548 inclusive. issuing this AD to prevent unexpected RA671–RA675 inclusive. disconnect of the autopilot during operation AGENCY: Federal Aviation RA677. in RVSM airspace due to close passage of Administration (FAA), DOT. RB071–RB075 inclusive. another airplane, which may result in ACTION: Direct final rule; confirmation of RB601–RB607 inclusive. altitude deviation, and consequently, could RB681–RB685 inclusive. lead to a possible mid-air collision or a near effective date. RB687. miss with aggressive evasive action (by either SUMMARY: RB690–RB693 inclusive. or both airplanes). Aggressive maneuvering at This document confirms the RB695–RB697 inclusive. cruise altitudes and airspeeds could result in effective date of the direct final rule RB721–RB723 inclusive. loss of control of the airplane and/or injury which revises Class E airspace at RD055. to passengers and crew. Nebraska City, NE. RD082. Compliance DATES: Effective Date: 0901 UTC, RD083. (e) You are responsible for having the January 20, 2005. RD221–RD227 inclusive. actions required by this AD performed within RD231–RD235 inclusive. FOR FURTHER INFORMATION CONTACT: the compliance times specified, unless the Brenda Mumper, Air Traffic Division, RD301. actions have already been done. RD302. Airspace Branch, ACE–520A, DOT RD381–RD383 inclusive. Airplane Flight Manual Revision Regional Headquarters Building, Federal RD461. (f) Within 10 days after the effective date Aviation Administration, 901 Locust, RD601–RD607 inclusive. of this AD, revise the Limitations section of Kansas City, MO 64106; telephone: RD741. the Boeing 747 Airplane Flight Manual (816) 329–2524. RD781–RD783 inclusive. (AFM) to include the following statement. SUPPLEMENTARY INFORMATION: The FAA RG173. This may be done by inserting a copy of this RG174. AD in the AFM. published this direct final rule with a RH101. ‘‘Operation of the autopilot/flight director request for comments in the Federal RH102. in command mode with Performance Register on October 26, 2004 (69 FR RJ321. Management System (PMS) selected on the 62403). The FAA uses the direct final RJ322. speed mode switch during cruise in Reduced rulemaking procedure for a non- RR024. Vertical Separation Minimum (RVSM) controversial rule where the FAA RR025. airspace is prohibited. believes that there will be no adverse RR261–RR263 inclusive. Use of PMS generated airspeeds and public comment. This direct final rule RR264–RR267 inclusive. autopilot modes (e.g., IAS/Mach) with RR361. manually crew-entered airspeeds (via Mode advised the public that no adverse RR362. Selector Panel) are allowed.’’ comments were anticipated, and that RR451. Note 1: When a statement identical to that unless a written adverse comment, or a RR522. in paragraph (f) of this AD has been included written notice of intent to submit such RR526. in the general revisions of the AFM, the an adverse comment, were received RR551–RR556 inclusive. general revisions may be inserted into the within the comment period, the RR566. AFM, and the copy of this AD may be regulation would become effective on RS001. removed from the AFM. January 20, 2005. No adverse comments RS002. RS211. Special Flight Permit were received, and thus this notice confirms that this direct final rule will RS212. (g) Special flight permits (14 CFR 21.197 RS221. and 21.199) are not allowed. become effective on that date. RS222. Issued in Kansas City, MO on November RS232. Alternative Methods of Compliance 26, 2004. (AMOCs) RS233. Elizabeth S. Wallis, RS235. (h) The Manager, Seattle Aircraft RS236. Certification Office (ACO), FAA, has the Acting Area Director, Western Flight Services RS237–RS241 inclusive. authority to approve AMOCs for this AD, if Operations. RS251–RS259 inclusive. requested in accordance with the procedures [FR Doc. 04–26848 Filed 12–6–04; 8:45 am] RS263. found in 14 CFR 39.19. BILLING CODE 4910–13–M

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DEPARTMENT OF TRANSPORTATION DEPARTMENT OF TRANSPORTATION Nantucket, MA, NDB which has been removed from service. This Federal Aviation Administration Federal Aviation Administration modification substitutes the latitude/ longitude coordinates of the former 14 CFR Part 71 14 CFR Part 71 geographic position of the Nantucket ° ′ ″ ° ′ ″ [Docket No. FAA–2004–19671; Airspace NDB (lat. 40 16 07 N., long. 70 10 48 [Docket No. FAA–2004–19326; Airspace Docket No. 04–AWA–07] W.) in place of all references to the NDB Docket No. 04–ACE–55] in the two Control Area descriptions. RIN 2120–AA66 This modification, therefore, simply changes the means of identifying points Modification of Class E Airspace; Modification of Control Areas 1143L in the legal descriptions without Oberlin, KS and 1146L altering the actual boundaries or AGENCY: Federal Aviation AGENCY: Federal Aviation altitudes of control areas. Further, this Administration (FAA), DOT. Administration (FAA), DOT. change will enhance safety by removing ACTION: Final rule. from the descriptions a navigation aid ACTION: Direct final rule; confirmation of that is no longer available for pilots’ use effective date. SUMMARY: This action revises the legal in navigation. descriptions of Control Areas 1143L and Because this action is an SUMMARY: This document confirms the 1146L to remove references to the administrative change that does not effective date of the direct final rule Nantucket, MA, Nondirectional Beacon alter the existing boundaries or altitudes which revises Class E airspace at (NDB), which has been taken out of of the Control Areas, and is needed for Oberlin, KS. service and decommissioned by the safety reasons, I find that notice and FAA. The legal descriptions are being public procedure under 5 U.S.C. 553(b) DATES: Effective Date: 0901 UTC, revised to use a geographical point are impracticable and contrary to the January 20, 2005. based on latitude/longitude coordinates public interest. Control Areas are published in FOR FURTHER INFORMATION CONTACT: in place of the former NDB references. paragraph 6007, of FAA Order 7400.9M, Kathy Randolph, Air Traffic Division, This action will enhance safety by removing references to a dated August 30, 2004, and effective Airspace Branch, ACE–520C, DOT September 16, 2004, which is Regional Headquarters Building, Federal decommissioned navigational aid from controlled airspace descriptions. incorporated by reference in 14 CFR Aviation Administration, 901 Locust, 71.1. The Control Areas listed in this EFFECTIVE DATES: Kansas City, MO 64106; telephone: 0901 UTC, March 17, document will be published (816) 329–2525. 2005. subsequently in the Order. FOR FURTHER INFORMATION CONTACT: Paul SUPPLEMENTARY INFORMATION: The FAA The FAA has determined that this Gallant, Airspace and Rules, System published this direct final rule with a regulation only involves an established Operations and Safety, Federal Aviation body of technical regulations for which request for comments in the Federal Administration, 800 Independence frequent and routine amendments are Register on October 26, 2004 (69 FR Avenue, SW., Washington, DC 20591; necessary to keep them operationally 62404). The FAA uses the direct final telephone: (202) 267–8783. current. Therefore, this regulation: (1) is rulemaking procedure for a non- SUPPLEMENTARY INFORMATION: not a ‘‘significant regulatory action’’ controversial rule where the FAA under Executive Order 12866; (2) is not believes that there will be no adverse Background a ‘‘significant rule’’ under Department of public comment. This direct final rule Control areas are Class E airspace Transportation (DOT) Regulatory advised the public that no adverse areas that provide controlled airspace Policies and Procedures (44 FR 11034, comments were anticipated, and that (beyond 12 nautical miles from the coast February 26, 1979); and (3) does not unless a written adverse comment, or a of the United States) where there is a warrant preparation of a Regulatory written notice of intent to submit such requirement to provide IFR en route air Evaluation as the anticipated impact is an adverse comment, were received traffic control (ATC) services and within so minimal. Since this is a routine within the comment period, the which the United States is applying matter that will only affect air traffic regulation would become effective on domestic ATC procedures. ControlAreas procedures and air navigation, it is January 20, 2005. No adverse comments 1143L and 1146L are located offshore to certified that this rule, when were received, and thus this notice the east of Cape Cod, Massachusetts. promulgated, will not have a significant confirms that this direct final rule will On June 17, 2004, the FAA’s New economic impact on a substantial become effective on that date. England Regional Office requested that number of small entities under the action be taken to modify the legal criteria of the Regulatory Flexibility Act. Issued in Kansas City, MO on November descriptions of Control Areas 1143L and 26, 2004. 1146L to remove references to the Environmental Review Elizabeth S. Wallis, Nantucket, MA, NDB. The NDB has The FAA has determined that this Acting Area Director, Western Flight Services been removed from service and action qualifies for categorical exclusion Operations. decommissioned by the FAA, therefore, under the National Environmental [FR Doc. 04–26849 Filed 12–6–04; 8:45 am] it can no longer be used in legal Policy Act in accordance with FAA BILLING CODE 4910–13–M descriptions. Order 1050.1E, Policies and Procedures for Considering Environmental Impacts. The Rule This airspace action is not expected to This action amends Title 14 Code of cause any potentially significant Federal Regulations (14 CFR) part 71 environmental impacts, and no (part 71) by revising the legal extraordinary circumstances exist that descriptions of Control Areas 1143L and warrant preparation of an 1146L to remove references to the environmental assessment.

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List of Subjects in 14 CFR Part 71 DEPARTMENT OF COMMERCE Commerce, Washington, DC 20230; phone (202) 606–9890 or e-mail Airspace, Incorporation by reference, Bureau of Economic Analysis ([email protected]). Navigation (air). SUPPLEMENTARY INFORMATION: In the 15 CFR Part 806 Adoption of Amendment August 17, 2004, Federal Register, 69 [Docket No. 040907254–4254–01] FR 51020–51024, BEA published a I In consideration of the foregoing, the RIN 0691–AA52 notice of proposed rulemaking setting Federal Aviation Administration forth revised reporting requirements for amends 14 CFR part 71 as follows: Direct Investment Surveys: BE–10, the BE–10, Benchmark Survey of U.S. Direct Investment Abroad. No PART 71—DESIGNATION OF CLASS A, Benchmark Survey of U.S. Direct Investment Abroad—2004 comments on the proposed rule were B, C, D, AND E, AIRSPACE AREAS; received. Thus, the proposed rule is AIR TRAFFIC SERVICE ROUTES; AND AGENCY: Bureau of Economic Analysis, adopted without change. REPORTING POINTS Commerce This final rule amends 15 CFR 806.16 ACTION: Final rule. to set forth the reporting requirements I 1. The authority citation for part 71 for the BE–10, Benchmark Survey of continues to read as follows: SUMMARY: This final rule amends U.S. Direct Investment Abroad—2004. Authority: 49 U.S.C. 106(g), 40103, 40113, regulations for the BE–10, Benchmark 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Survey of U.S. Direct Investment Description of Changes 1963 Comp., p. 389. Abroad. The BE–10, Benchmark Survey of U.S. The BE–10 survey is conducted once § 71.1 [Amended] Direct Investment Abroad, is a every five years by the Bureau of mandatory survey and is conducted Economic Analysis (BEA), U.S. I 2. The incorporation by reference in 14 once every 5 years by BEA, under the Department of Commerce, under the International Investment and Trade in CFR 71.1 of the Federal Aviation International Investment and Trade in Administration Order 7400.9M, Services Survey Act (22 U.S.C. 3101– Services Survey Act. The benchmark 3108), hereinafter, ‘‘the Act.’’ BEA will Airspace Designations and Reporting survey will be conducted for 2004. The Points, dated August 30, 2004, and send the survey to potential respondents benchmark survey covers virtually the in March 2005; responses will be due by effective September 16, 2004, is entire universe of U.S. direct investment amended as follows: May 31, 2005, for respondents required abroad in terms of value, and is BEA’s to file fewer than 50 foreign affiliate Paragraph 6007 Offshore airspace areas. most comprehensive survey of such report forms and by June 30, 2005 for * * * * * investment in terms of subject matter. It those required to file 50 or more forms. obtains universe data on financial and Control 1143L [Revised] This final rule: (1) Increases the operating characteristics of, and on exemption level for reporting on the That airspace extending upward from positions and transactions between, U.S. BE–10B(SF) short form from $7 million 5,500 feet MSL within tangent lines drawn parent companies and their foreign from the circumference of a 4.3-mile radius to $25 million and on the BE–10B Bank ° ′ ″ affiliates. The data are needed to form from $7 million to $10 million; (2) circle centered on lat. 41 16 07 N., long. measure the size and economic 70°10′48″ W., to a 13-mile radius circle increases the exemption level for centered at the midway point on a direct line significance of U.S. direct investment reporting on the BE–10B(LF) long form between lat. 41°16′07″ N., long. 70°10′48″ W., abroad, measure changes in such from $100 million to $150 million; and and the Yarmouth, NS, Canada, NDB to a 4.3- investment, and assess its impact on the (3) increases the exemption level for mile radius circle centered on the Yarmouth U.S. and foreign economies. reporting only selected items on the BE– The final rule: Increases the NDB excluding that airspace within the 10A form from $100 million to $150 exemption level for reporting on the confines of Federal airways and east of long. million. In conjunction with these 67°00′00″ W. BE–10B(SF) short form from $7 million increases in exemption levels, an to $25 million and on the BE–10B Bank * * * * * abbreviated short form is introduced for form from $7 million to $10 million; reporting nonbank foreign affiliates with Control 1146L [Revised] increases the exemption level for assets, sales or gross operating revenues, That airspace extending upward from reporting on the BE–10B(LF) long form and net income (loss) less than or equal 5,500 feet MSL within a 5-mile radius circle from $100 million to $150 million; and ° ′ ″ ° ′ ″ to $25 million but with at least one of centered on lat. 41 16 07 N., long. 70 10 48 increases the exemption level for W., and that airspace bounded by a line these items greater than $10 million. reporting only selected items on the BE– drawn from the tangent of the 5-mile radius In addition to the changes in the 10A form from $100 million to $150 circle centered on lat. 41°16′07″ N., long. reporting criteria mentioned above, BEA million. In conjunction with these 70°10′48″ W., to lat. 42°05′20″ N., long. will expand reporting requirements on ° ′ ″ ° ′ ″ increases in exemption levels, BEA is 67 59 58 W.; to lat. 42 19 00 N., long. the BE–10B(SF) so that certain items ° ′ ″ ° ′ ″ introducing an abbreviated short form, 67 59 58 W.; to lat. 43 00 00 N., long. that previously had been reportable only 67°00′00″ W.; to lat. 41°52′00″ N., long. Form BE–10B Mini, for reporting for majority-owned affiliates with assets, 67°00′00″ W.; to lat. 41°46′00″ N., long. nonbank foreign affiliates with assets, sales or gross operating revenues, or net 67°59′58″ W.; to the tangent of the 5-mile sales or gross operating revenues, and ° ′ ″ income (loss) over $50 million will now radius circle centered on lat. 41 16 07 N., net income (loss) less than or equal to ° ′ ″ be reportable for all majority-owned long. 70 10 48 W. $25 million but greater than $10 affiliates being filed on the BE–10B(SF). * * * * * million. BEA will add questions to the BE– Issued in Washington, DC, on December 1, DATES: This final rule will be effective 10A form and BE–10B(LF) long form to 2004. January 6, 2005. collect detail on: (1) The broad Reginald C. Matthews, FOR FURTHER INFORMATION CONTACT: Obie occupational structure of employment; Manager, Airspace and Rules. G. Whichard, Chief, International (2) premiums earned and claims paid [FR Doc. 04–26845 Filed 12–6–04; 8:45 am] Investment Division (BE–50), Bureau of for U.S. Reporters and foreign affiliates BILLING CODE 4910–13–P Economic Analysis, U.S. Department of operating in the insurance industry; (3)

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finished goods purchased for resale for (4) Obtain information on tax corporations engaged in international or U.S. Reporters and foreign affiliates payments by parents and affiliates by foreign banking, foreign branches and operating in the wholesale and retail country; and agencies of U.S. banks whether or not trade industries; and (4) research and (5) Determine, by industry and they accept deposits abroad, savings and development performed for affiliated country, the total dollar amount of loans, savings banks, bank holding persons or for others. In addition, BEA research and development expenditures companies, and financial holding will expand the income statement on by each parent and affiliate, payments companies. The report forms that will the BE–10B(SF) short form to include or other compensation for the transfer of be used in the survey consist of the items on the long form and to add technology between parents and their following: questions to the BE–10A Bank and BE– affiliates, and payments or other 1. Form BE–10A—Report for nonbank 10B Bank forms to collect information compensation received by parents or U.S. Reporters; on sales of services and on interest affiliates from the transfer of technology 2. Form BE–10A BANK—Report for received and paid. to other persons. U.S. Reporters that are banks; To offset the burden imposed by these In Section 3 of Executive Order 3. Form BE–10B(LF) (Long Form)— additional questions, BEA will remove 11961, the President delegated authority Report for majority-owned nonbank questions on: (1) U.S. trade in goods by granted under the Act as concerns direct foreign affiliates of nonbank U.S. product; (2) U.S. Reporter exports to investment to the Secretary of parents with assets, sales, or net income unaffiliated foreign persons by country Commerce, who has redelegated it to greater than $150 million (positive or of destination; and (3) composition of BEA. negative); The benchmark surveys are BEA’s external finances for the U.S. Reporter. 4. Form BE–10B(SF) (Short Form)— censuses, intended to cover the universe In addition, BEA will replace sales by Report for majority-owned nonbank of U.S. direct investment abroad in country of destination on the BE– foreign affiliates of nonbank U.S. terms of value. U.S. direct investment 10B(LF) with sales by major countries/ parents with assets, sales, or net income abroad is defined as the ownership or regions. greater than $25 million but not greater control, directly or indirectly, by one than $150 million (positive or negative); Survey Background U.S. person of 10 percent or more of the minority-owned nonbank foreign voting securities of an incorporated The Bureau of Economic Analysis affiliates of nonbank U.S. parents with foreign business enterprise or an (BEA), U.S. Department of Commerce, assets, sales, or net income greater than equivalent interest in an unincorporated will conduct the survey under the $25 million (positive or negative); and foreign business enterprise, including a International Investment and Trade in nonbank affiliates of U.S. bank parents branch. Services Survey Act (22 U.S.C. 3101– with assets, sales, or net income greater The purpose of the benchmark survey than $25 million (positive or negative); 3108), hereinafter, ‘‘the Act.’’ Section is to obtain universe data on the 4(b) of the Act provides that with 5. Form BE–10B Mini—Report for financial and operating characteristics nonbank foreign affiliates with assets, respect to United States direct of, and on positions and transactions investment abroad, the President shall sales, or net income greater than $10 between, U.S. parent companies and million but not greater than $25 million conduct a benchmark survey covering their foreign affiliates. The data are year 1982, a benchmark survey covering (positive or negative); and needed to measure the size and 6. Form BE–10B BANK—Report for year 1989, and benchmark surveys economic significance of U.S. direct covering every fifth year thereafter. In foreign affiliates that are banks. investment abroad, measure changes in Although the survey is intended to conducting surveys pursuant to this such investment, and assess its impact subsection, the President shall, among cover the universe of U.S. direct on the U.S. and foreign economies. The investment abroad, to reduce other things and to the extent he data are used to derive current universe determines necessary and feasible— respondent burden, foreign affiliates estimates of direct investment from with assets, sales, and net income each (1) Identify the location, nature, and sample data collected in other BEA magnitude of, and changes in total equal to or less than $10 million surveys in nonbenchmark years. In (positive or negative) are exempt from investment by any parent in each of its particular, they will serve as affiliates and the financial transactions being reported on Form BE–10B(SF), benchmarks for the quarterly direct BE–10B Mini, or BE–10B BANK (but between any parent and each of its investment estimates included in the affiliates; must be listed, along with selected U.S. international transactions and identification information and data, on (2) Obtain (A) information on the national income and product accounts, Form BE–10A SUPPLEMENT A or BE– balance sheet of parents and affiliates and for annual estimates of the U.S. 10A BANK SUPPLEMENT A). and related financial data, (B) income direct investment position abroad and of statements, including the gross sales by the operations of U.S. parent companies Executive Order 12866 primary line of business (with as much and their foreign affiliates. This final rule has been determined to product line detail as is necessary and The survey will consist of an be not significant for purposes of feasible) of parents and affiliates in each instruction booklet, a claim for not filing E.O.12866. country in which they have significant the BE–10, and a number of report operations, and (C) related information forms. The amount and type of data Executive Order 13132 regarding trade, including trade in both required to be reported vary according This final rule does not contain goods and services, between a parent to the size of the U.S. Reporters or policies with Federalism implications and each of its affiliates and between foreign affiliates, whether they are banks sufficient to warrant preparation of a each parent or affiliate and any other or nonbanks and, for foreign affiliates, Federalism assessment under E.O. person; whether or not they are majority-owned 13132. (3) Collect employment data showing by U.S. direct investors. For purposes of both the number of United States and the BE–10 survey, a ‘‘bank’’ is a Paperwork Reduction Act foreign employees of each parent and business entity engaged in deposit The collection of information required affiliate and the levels of compensation, banking or closely related functions, in this final rule has been approved by by country, industry, and skill level; including commercial banks, Edge Act the Office of Management and Budget

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(OMB) under the Paperwork Reduction addition to forms they may be required (3) Filing the properly completed BE– Act (PRA). to file for their foreign affiliates. 10 report (comprising Form BE–10A or Notwithstanding any other provision No comments were received regarding BE–10A BANK and Forms BE–10B(LF), of the law, no person is required to the economic impact of the rule. As a BE–10B(SF), BE–10B Mini and/or BE– respond to, nor shall any person be result, no final regulatory flexibility 10B BANK) by May 31, 2005, or June 30, subject to a penalty for failure to comply analysis was prepared. 2005, as required. with, a collection of information subject (b) Who must report. (1) A BE–10 to the requirements of the Paperwork List of Subjects in 15 CFR Part 806 report is required of any U.S. person Reduction Act unless that collection International transactions, Economic that had a foreign affiliate—that is, that displays a currently valid OMB control statistics, U.S. investment abroad, had direct or indirect ownership or number. The OMB control number for Penalties, Reporting and recordkeeping control of at least 10 percent of the the BE–10 is 0608–0049; the collection requirements. voting stock of an incorporated foreign will display this number. business enterprise, or an equivalent The survey is expected to result in the J. Steven Landefeld, interest in an unincorporated foreign filing of reports from approximately Director, Bureau of Economic Analysis. business enterprise—at any time during 3,875 respondents. The respondent I For the reasons set forth in the the U.S. person’s 2004 fiscal year. burden for this collection of information preamble, BEA amends 15 CFR Part 806 (2) If the U.S. person had no foreign will vary from one company to another, as follows: affiliates during its 2004 fiscal year, a but is estimated to average 110 hours ‘‘BE–10 Claim for Not Filing’’ must be per response, including time for PART 806—DIRECT INVESTMENT filed by the due date of the survey; no reviewing instructions, searching SURVEYS other forms in the survey are required. existing data sources, gathering and If the U.S. person had any foreign I 1. The authority citation for 15 CFR maintaining the data needed, and affiliates during its 2004 fiscal year, a Part 806 is revised to read as follows: completing and reviewing the collection BE–10 report is required and the U.S. of information. Thus the total Authority: 5 U.S.C. 301; 22 U.S.C. 3101– person is a U.S. Reporter in this survey. respondent burden for the 2004 survey 3108; E.O. 11961 (3 CFR, 1977 Comp., p. 86), (3) Reports are required even if the is estimated at 428,750 hours. as amended by E.O. 12318 (3 CFR, 1981 foreign business enterprise was Comments regarding the burden Comp., p. 173); E.O. 12518 (3 CFR, 1985 established, acquired, seized, estimate or any other aspect of this Comp., p. 348). liquidated, sold, expropriated, or collection of information should be I 2. Section 806.16 is revised to read as inactivated during the U.S. person’s addressed to: Director, Bureau of follows: 2004 fiscal year. Economic Analysis (BE–1), U.S. (4) The amount and type of data Department of Commerce, Washington, § 806.16 Rules and regulations for BE–10, required to be reported vary according DC 20230 (Fax: 202–606–5311); and Benchmark Survey of U.S. Direct to the size of the U.S. Reporters or Office of Management and Budget, Investment Abroad—2004. foreign affiliates, whether they are banks O.I.R.A., Paperwork Reduction Project A BE–10, Benchmark Survey of U.S. or nonbanks, and, for foreign affiliates, 0608–0049, Attention PRA Desk Officer Direct Investment Abroad will be whether they are majority-owned or for BEA, via the Internet at conducted covering 2004. All legal minority-owned by U.S. direct [email protected], or by Fax at 202– authorities, provisions, definitions, and investors. For purposes of the BE–10 395–7245. requirements contained in § 806.1 survey, a ‘‘majority-owned’’ foreign through § 806.13 and § 806.14(a) affiliate is one in which the combined Regulatory Flexibility Act through (d) are applicable to this survey. direct and indirect ownership interest of The Chief Counsel for Regulation, Specific additional rules and regulations all U.S. parents of the foreign affiliate Department of Commerce, has certified for the BE–10 survey are given in exceeds 50 percent; all other affiliates to the Chief Counsel for Advocacy, paragraphs (a) through (e) of this are referred to as ‘‘minority-owned’’ Small Business Administration, under section. More detailed instructions are affiliates. In addition, a ‘‘bank’’ is a the provisions of the Regulatory given on the report forms and business entity engaged in deposit Flexibility Act (5 U.S.C. 605(b)), that instructions. banking or closely related functions, this final rule will not have a significant (a) Response required. A response is including commercial banks, Edge Act economic impact on a substantial required from persons subject to the corporations, foreign branches and number of small entities. A BE–10 reporting requirements of the BE–10, agencies of U.S. banks whether or not report is required of any U.S. company Benchmark Survey of U.S. Direct they accept deposits abroad, savings and that had a foreign affiliate—that is, that Investment Abroad—2004, contained in loans, savings banks, bank holding had direct or indirect ownership or this section, whether or not they are companies, and financial holding control of at least 10 percent of the contacted by BEA. Also, a person, or companies. Elsewhere in this section, voting stock of an incorporated foreign their agent, that is contacted by BEA when ‘‘bank’’ is used, it refers to all business enterprise, or an equivalent about reporting in this survey, either by such organizations. interest in an unincorporated foreign sending them a report form or by (c) Forms for nonbank U.S. Reporters business enterprise at any time during written inquiry, must respond in writing and foreign affiliates. (1) Form BE–10A the U.S. company’s 2004 fiscal year. pursuant to § 806.4. This may be (Report for nonbank U.S. Reporter). A Companies that have direct investments accomplished by: BE–10A report must be completed by a abroad tend to be quite large. To reduce (1) Certifying in writing, by the due U.S. Reporter that is not a bank. If the the reporting burden on smaller U.S. date of the survey, to the fact that the U.S. Reporter is a corporation, Form companies, U.S. Reporters with total person had no direct investment within BE–10A is required to cover the fully assets, sales or gross operating revenues, the purview of the reporting consolidated U.S. domestic business and net income less than or equal to requirements of the BE–10 survey; enterprise. However, where a U.S. $150 million (positive or negative) are (2) Completing and returning the Reporter’s primary line of business is required to report only selected items on ‘‘BE–10 Claim for Not Filing’’ by the due not in banking (or related financial the BE–10A form for U.S. Reporters in date of the survey; or activities), but the Reporter also has

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ownership in a bank, the bank, Reporter, whether held directly or foreign affiliate and a Form BE–10B including all of its domestic subsidiaries indirectly, for which any one of the BANK for each nonexempt bank foreign or units, must file on the BE–10A BANK three items listed in paragraph (c)(2)(i) affiliate. form and the nonbanking U.S. of this section was greater than $25 (ii) If the U.S. bank Reporter had no operations not owned by the bank must million (positive or negative), at any foreign affiliates for which any one of file on the BE–10A. time during the affiliate’s 2004 fiscal the three items listed in paragraph (i) If for a nonbank U.S. Reporter any year, and one of the following three items—total (C) For each nonbank foreign affiliate (d)(2)(i) of this section was greater than assets, sales or gross operating revenues of a U.S. bank Reporter, whether held $10 million (positive or negative) at any excluding sales taxes, or net income directly or indirectly, for which any one time during the affiliate’s 2004 fiscal after provision for U.S. income taxes— of the three items listed in paragraph year, the U.S. Reporter must file a Form was greater than $150 million (positive (c)(2)(i) of this section was greater than BE–10A BANK and a BE–10A BANK or negative) at any time during the $25 million (positive or negative), at any SUPPLEMENT A, listing all foreign Reporter’s 2004 fiscal year, the U.S. time during the affiliate’s 2004 fiscal affiliates exempt from being reported on Reporter must file a complete Form BE– year. Form BE–10B(SF), BE–10B Mini, or BE– 10A and, as applicable, a BE–10A (iii) A BE–10B Mini must be filed for 10B BANK. each nonbank foreign affiliate, whether SUPPLEMENT A listing each, if any, (2) Form BE–10B BANK (Report for a held directly or indirectly, for which foreign affiliate that is exempt from foreign affiliate that is a bank). (i) A BE– being reported on Form BE–10B(LF), any one of the three items listed in 10B BANK report must be filed for each BE–10B(SF), BE–10B Mini, or BE–10B paragraph (c)(2)(i) of this section was foreign bank affiliate of a bank or BANK. It must also file a Form BE– greater than $10 million but for which 10B(LF), BE–10B(SF), BE–10B Mini, or none of these items was greater than $25 nonbank U.S. Reporter, whether directly BE–10B BANK, as appropriate, for each million (positive or negative), at any or indirectly held, for which any one of nonexempt foreign affiliate. time during the affiliate’s 2004 fiscal the three items—total assets, sales or (ii) If for a nonbank U.S. Reporter year. gross operating revenues excluding sales none of the three items listed in (iv) Notwithstanding paragraphs taxes, or net income after provision for paragraph (c)(1)(i) of this section was (c)(2)(i), (c)(2)(ii), and (c)(2)(iii) of this foreign income taxes—was greater than greater than $150 million (positive or section, a Form BE–10B(LF), (SF), or $10 million (positive or negative) at any negative) at any time during the Mini must be filed for a foreign affiliate time during the affiliate’s 2004 fiscal Reporter’s 2004 fiscal year, the U.S. of the U.S. Reporter that owns another year. nonexempt foreign affiliate of that U.S. Reporter is required to file on Form BE– (ii) Notwithstanding paragraph 10A only certain items as designated on Reporter, even if the foreign affiliate (d)(3)(i) of this section, a Form BE–10B the form and, as applicable, a BE–10A parent is otherwise exempt, i.e., a Form BANK must be filed for a foreign bank SUPPLEMENT A listing each, if any, BE–10B(LF), (SF), Mini, or BANK must foreign affiliate that is exempt from be filed for all affiliates upward in a affiliate of the U.S. Reporter that owns being reported on Form BE–10B(LF), chain of ownership. another nonexempt foreign affiliate of BE–10B(SF), BE–10B Mini, or BE–10B (d) Forms for U.S. Reporters and that U.S. Reporter, even if the foreign BANK. It must also file a Form BE– foreign affiliates that are banks, bank affiliate parent is otherwise exempt, i.e., 10B(LF), BE–10B(SF), BE–10B Mini, or holding companies, or financial holding a Form BE–10B(LF), (SF), Mini, or BE–10B BANK, as appropriate, for each companies. (1) Form BE–10A BANK BANK must be filed for all affiliates nonexempt foreign affiliate. (Report for a U.S. Reporter that is a upward in a chain of ownership. (2) Form BE–1OB(LF), (SF), or Mini bank). A BE–10A BANK report must be However, a Form BE–10B BANK is not (Report for nonbank foreign affiliate). (i) completed by a U.S. Reporter that is a required to be filed for a foreign bank A BE–10B(LF) (Long Form) must be bank. For purposes of filing Form BE– affiliate in which the U.S. Reporter filed for each majority-owned nonbank 10A BANK, the U.S. Reporter is deemed holds only an indirect ownership foreign affiliate of a nonbank U.S. to be the fully consolidated U.S. interest of 50 percent or less and that Reporter, whether held directly or domestic business enterprise and all does not own a reportable nonbank indirectly, for which any one of the required data on the form shall be for foreign affiliate, but the indirectly three items—total assets, sales or gross the fully consolidated domestic entity. owned bank affiliate must be listed on (i) If a U.S. bank had any foreign operating revenues excluding sales the BE–10A BANK SUPPLEMENT A. taxes, or net income after provision for affiliates at any time during its 2004 foreign income taxes—was greater than fiscal year, whether a bank or nonbank (e) Due date. A fully completed and $150 million (positive or negative) at and whether held directly or indirectly, certified BE–10 report comprising Form any time during the affiliate’s 2004 for which any one of the three items— BE–10A or 10A BANK and Form(s) BE– fiscal year. total assets, sales or gross operating 10B(LF), (SF), Mini, or BANK (as (ii) A BE–10B(SF) (Short Form) must revenues excluding sales taxes, or net required) is due to be filed with BEA not be filed: income after provision for foreign later than May 31, 2005 for those U.S. (A) For each majority-owned nonbank income taxes—was greater than $10 Reporters filing fewer than 50, and June foreign affiliate of a nonbank U.S. million (positive or negative) at any 30, 2005 for those U.S. Reporters filing Reporter, whether held directly or time during the affiliate’s 2004 fiscal 50 or more, Forms BE–10B(LF), (SF), indirectly, for which any one of the year, the U.S. Reporter must file a Form Mini, or BANK. three items listed in paragraph (c)(2)(i) BE–10A BANK and, as applicable, a BE– [FR Doc. 04–26764 Filed 12–6–04; 8:45 am] of this section was greater than $25 10A BANK SUPPLEMENT A listing million but for which none of these each, if any, foreign affiliate, whether BILLING CODE 3510–06–P items was greater than $150 million bank or nonbank, that is exempt from (positive or negative), at any time during being reported on Form BE–10B(SF), the affiliate’s 2004 fiscal year, and BE–10B Mini, or BE–10B BANK. It must (B) For each minority-owned nonbank also file a Form BE–10B(SF) or BE–10B foreign affiliate of a nonbank U.S. Mini for each nonexempt nonbank

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DEPARTMENT OF THE TREASURY organization returns. The temporary and to remove barriers to electronic regulations also removed the previously filing, this Treasury decision removes Internal Revenue Service applicable rules requiring a signature the signature requirement from and an explanation to obtain an § 1.6081–3. 26 CFR Parts 1, 25, 31, 53, 55, 156, 301, automatic extension of time to file these In addition to removing the signature and 602 returns. In addition, the temporary requirement, this Treasury decision revises § 1.6081–3 to reflect the repeal of [TD 9163] regulations made other minor changes to conform the regulations under section section 6152, which allowed RIN 1545–BB29 6081 to current law and practice. corporations to pay tax in installments. No comments were received from the A similar revision is made to Automatic Extension of Time To File public in response to the notice of § 301.6651–1, relating to the addition to Certain Information Returns and proposed rulemaking and no public tax for failure to file return or pay tax. Exempt Organization Returns hearing was requested or held. For a corporation that obtains an automatic extension of time to file AGENCY: Internal Revenue Service (IRS), Explanation of Provisions Treasury. under § 1.6081–3, the existing rules in This Treasury decision removes the § 301.6651–1(c)(4) provide that there is ACTION: Final regulations and removal of temporary regulations and adopts the reasonable cause (and therefore no temporary regulations. proposed regulations as final regulations addition to tax) for failure to pay tax for SUMMARY: This document contains final with the changes explained below. the period of the extension if the The first change relates to the regulations relating to the automatic corporation made payments on a automatic extension of time to file extension of time to file certain schedule consistent with the installment exempt organization returns. Section information returns and exempt payment schedule in section 6152, paid 1.6081–9(a) of the proposed regulations organization returns. The final at least 90% of its tax due on or before provides that exempt organizations may regulations adopt temporary rules that the due date for the return, and paid any automatically extend the time for filing removed the requirement for a signature balance due on or before the extended Form 990 (series) returns for three due date. This Treasury decision and an explanation to obtain an months. This language inadvertently automatic extension of time to file these removes the requirement that the included exempt organizations corporation make payments on a returns. The final regulations also organized in corporate form (corporate remove the requirement for a signature schedule consistent with section 6152. filers) that file Forms 990–T, ‘‘Exempt Section 1.6081–8 allows filers and to obtain an automatic extension of time Organization Business Income Tax to file corporation income tax returns. transmitters of information returns on Return’’ (and proxy tax under section Form 1099 (series), 1098 (series), 5498 The final regulations affect taxpayers 6033(e)), who previously could obtain a who need an extension of time to file (series), W–2 (series), W–2G, 1042–S, six-month extension of time to file each and 8027 to request an automatic 30-day certain information returns, exempt year. The IRS and the Treasury extension of time to file without having organization returns, and/or corporation Department did not intend to make any to sign Form 8809 and provide an income tax returns. changes regarding the extension period explanation. An explanation and a DATES: Effective Date: These regulations for corporate filers of the Form 990–T. signature are required if filers and are effective on December 7, 2004. Therefore, these final regulations clarify transmitters need additional time to file Applicability Date: For dates of that corporate filers of the Form 990–T after receiving the automatic 30-day applicability, see §§ 1.6081–3(e), may obtain a six-month automatic extension. These regulations also permit 1.6081–8(g), 1.6081–9(f), and extension of time to file by properly employers to obtain an extension of 31.6081(a)–1(d). filing Form 8868. time to file the Social Security FOR FURTHER INFORMATION CONTACT: Furthermore, in reviewing the Administration copy of Forms W–2 and Charles A. Hall, (202) 622–4940 (not a regulations under section 6081, the IRS W–3 without providing a statement of toll-free number). and the Treasury Department the reasons for requesting the extension. SUPPLEMENTARY INFORMATION: determined that it was appropriate to The final regulations clarify that filers amend § 1.6081–3 to eliminate the and transmitters are eligible for only one Background requirement for corporations to provide automatic extension of time to file. This document contains amendments a signature on Form 7004, ‘‘Application Filers and transmitters filing Forms W– to 26 CFR parts 1, 25, 31, 53, 55, 156, for Automatic Extension of Time To File 2 on an expedited basis under 301, and 602 under section 6081 of the Corporation Income Tax Return,’’ to § 31.6071(a)–1(a)(3)(ii) may receive an Internal Revenue Code, relating to obtain a six-month automatic extension automatic extension of time to file extensions of time to file Federal tax of time to file a corporation income tax Forms W–2 under Rev. Proc. 96–57, returns. return. Section 1.6081–3, like all other 1996–2 C.B. 389. These filers and On June 11, 2003, the IRS published regulations providing for automatic transmitters are not eligible to obtain the final and temporary regulations (TD extensions of time to file, does not 30-day automatic extension under 9061) in the Federal Register (68 FR require the taxpayer to explain why the § 1.6081–8(b). If these filers and 34797). A cross-reference notice of extension is needed. Section 1.6081–3, transmitters need additional time, they proposed rulemaking (REG–107618–02) however, unlike the other automatic may request an extension under the was published in the Federal Register extensions of time to file, does require generally applicable procedures for (68 FR 34875) on the same day. a signature on the Form 7004. This obtaining additional extensions of time Subsequently, the IRS published a signature requirement is an impediment to file Form W–2. correction to the final and temporary to filing the Form 7004 electronically. regulations dated September 18, 2003 The IRS and the Treasury Department Special Analyses (68 FR 54660). have determined that there is no need It has been determined that this The temporary regulations provide an for a signature requirement for the Treasury decision is not a significant automatic extension of time to file automatic corporation income tax return regulatory action as defined in certain information returns and exempt extension. Thus, to promote consistency Executive Order 12866. Therefore, a

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regulatory assessment is not required. It 26 CFR Part 301 prescribed for filing the return if the also has been determined that section Employment taxes, Estate taxes, following requirements are met: (1) An application must be submitted 553(b) of the Administrative Procedure Excise taxes, Gift taxes, Income taxes, on Form 7004, ‘‘Application for Act (5 U.S.C. chapter 5) does not apply Penalties, Reporting and recordkeeping Automatic Extension of Time To File to these regulations and, therefore, requirements. notice of the amendments to §§ 1.6081– Corporation Income Tax Return,’’ or in 3 and 301.6651–1 and public procedure 26 CFR Part 602 any other manner as may be prescribed thereon is not required. Because these Reporting and recordkeeping by the Commissioner. (2) The application must be filed on amendments merely remove a requirements. restriction (signature requirement) and or before the date prescribed for the otherwise make only nonsubstantive Adoption of Amendments to the filing of the return of the corporation (or changes to remove references to prior Regulations the consolidated return of the affiliated law, a delayed effective date pursuant to group of corporations) with the Internal I Accordingly, 26 CFR parts 1, 25, 31, 5 U.S.C. 553(d) is also not required. Revenue Service office designated in the 53, 55, 156, 301, and 602 are amended application’s instructions. In addition, because the regulation as follows: does not impose a collection of (3) The corporation (or affiliated information on small entities, the PART 1—INCOME TAXES group of corporations filing a Regulatory Flexibility Act (5 U.S.C. consolidated return) must remit the chapter 6) does not apply. Pursuant to I Paragraph 1. The authority citation for amount of the properly estimated section 7805(f) of the Internal Revenue part 1 is amended by removing the unpaid tax liability on or before the date Code, the notice of proposed rulemaking entries for § 1.6081–8T and § 1.6081–9T prescribed for payment. (4) The application must include a preceding this regulation and the and adding entries in numerical order to statement listing the name and address amendments to §§ 1.6081–3 and read in part as follows: of each member of the affiliated group 301.6651–1 have been submitted to the Authority: 26 U.S.C. 7805 * * * if the affiliated group will file a Chief Counsel for Advocacy of the Small Section 1.6081–8 also issued under 26 consolidated return. Business Administration for comment U.S.C. 6081(a). (b) No extension of time for the on their impact on small business. Section 1.6081–9 also issued under 26 U.S.C. 6081(a). * * * payment of tax. Any automatic Drafting Information extension of time for filing a corporation I Par. 2. Section 1.6081–1 is amended by income tax return granted under The principal author of these revising paragraph (a) to read as follows: paragraph (a) of this section shall not regulations is Charles A. Hall of the operate to extend the time for payment Office of Associate Chief Counsel, § 1.6081–1 Extension of time for filing returns. of any tax due on such return. Procedure and Administration (c) Termination of automatic (a) In general. The Commissioner is (Administrative Provisions and Judicial extension. The Commissioner may authorized to grant a reasonable Practice Division). However, other terminate an automatic extension at any extension of time for filing any return, personnel from the IRS and Treasury time by mailing a notice of termination declaration, statement, or other Department participated in their to the corporation (parent corporation in document which relates to any tax development. the case of an affiliated group of imposed by subtitle A of the Code and corporations filing a consolidated List of Subjects which is required under the provisions return). The notice shall be mailed at of subtitle A or F of the Code or the 26 CFR Part 1 least 10 days prior to the termination regulations thereunder. However, other date designated in such notice. The Income taxes, Reporting and than in the case of taxpayers who are notice of termination shall be sufficient recordkeeping requirements. abroad, such extensions of time shall for all purposes when mailed to the not be granted for more than 6 months, 26 CFR Part 25 corporation at the address shown on and the extension of time for filing the Form 7004 or to the corporation’s last Gift taxes, Reporting and return of a DISC (as defined in section known address. For further guidance recordkeeping requirements. 992(a)), as specified in section 6072(b), regarding the definition of last known shall not be granted. Except in the case 26 CFR Part 31 address, see § 301.6212–2 of this of an extension of time pursuant to Employment taxes, Income taxes, chapter. § 1.6081–5, an extension of time for (d) No extension for DISCs. Penalties, Pensions, Railroad retirement, filing an income tax return shall not Paragraphs (a) through (c) of this section Reporting and recordkeeping operate to extend the time for the shall not apply to returns filed by a requirements, Social security, payment of the tax unless specified to DISC pursuant to section 6011(c)(2). Unemployment compensation. the contrary in the extension. For rules (e) Effective date. This section applies 26 CFR Part 53 relating to extensions of time for paying to requests for extension of time to file tax, see § 1.6161–1. corporation income tax returns due after Excise taxes, Foundations, * * * * * December 7, 2004. Investments, Lobbying, Reporting and I Par. 3. Section 1.6081–3 is revised to I Par. 4. Section 1.6081–8 is added to recordkeeping requirements. read as follows: read as follows: 26 CFR Part 55 § 1.6081–3 Automatic extension of time for § 1.6081–8 Automatic extension of time to Excise taxes, Investments, Reporting filing corporation income tax returns. file certain information returns. and recordkeeping requirements. (a) In general. A corporation or an (a) In general. Except as provided in 26 CFR Part 156 affiliated group of corporations filing a paragraph (f) of this section, a person consolidated return will be allowed an required to file an information return Excise taxes, Reporting and automatic 6-month extension of time to (the filer) on Form W–2 series, W–2G, recordkeeping requirements. file its income tax return after the date 1042–S, 1098 series, 1099 series, 5498

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series, or 8027 will be allowed one § 1.6081–8T [Removed] organization return or failure to pay the automatic 30-day extension of time to I Par. 5. Section 1.6081–8T is removed. amount shown as tax on the return. file the return after the date prescribed I Par. 6. Section 1.6081–9 is added to (e) Coordination with § 1.6081–1. No for filing the return if the filer or the read as follows: extension of time will be granted under person transmitting the return for the § 1.6081–1 for filing an exempt filer (the transmitter) files an § 1.6081–9 Automatic extension of time to organization return listed in paragraph application in accordance with file exempt organization returns. (a) of this section until an automatic paragraph (b) of this section. (a) In general. A corporation required extension has been allowed pursuant to (b) Requirements. To satisfy this to file a return on Form 990–T will be this section. paragraph (b), an application must— allowed an automatic six-month (f) Effective date. This section applies (1) Be submitted on Form 8809, extension of time to file the return after to requests for extensions of time to file ‘‘Request for Extension of Time To File the date prescribed for filing if the an exempt organization return due after Information Returns,’’ or in any other corporation files an application in December 7, 2004. manner as may be prescribed by the accordance with paragraph (b) of this Commissioner; and section. In any other case, an exempt § 1.6081–9T [Removed] (2) Be filed with the Internal Revenue organization required to file a return on I Par. 7. Section 1.6081–9T is removed. Service office designated in the Form 990 (series, except for Form 990– application’s instructions on or before C), 1041–A, 4720, 5227, 6069, or 8870 PART 25—GIFT TAX; GIFTS MADE the date prescribed for filing the will be allowed an automatic three- AFTER DECEMBER 31, 1954 information return. month extension of time to file the I (c) Penalties. See sections 6652, 6693, return after the date prescribed for filing Par. 8. The authority citation for part 6721, 6722, and 6723 for failure to file if the exempt organization files an 25 continues to read in part as follows: an information return. application in accordance with Authority: 26 U.S.C. 7805 * * * (d) Additional 30-day extension of paragraph (b) of this section. For time to file—(1) In general. This guidance on extensions of time for an PART 31—EMPLOYMENT TAXES AND paragraph (d) provides procedures for exempt organization to file Form 990–C, COLLECTION OF INCOME TAX AT obtaining an additional extension of ‘‘Farmer’s Cooperative Association SOURCE time for filing an information return on Income Tax Return,’’ or Form 1120– I Par. 9. The authority citation for part a form listed in paragraph (a) of this POL, ‘‘U.S. Income Tax Return for 31 is amended by removing the entry for section. No extension of time will be Certain Political Organizations,’’ see § 31.6081(a)–1T to read in part as granted under this paragraph (d) unless § 1.6081–3. follows: the filer or transmitter has first obtained (b) Requirements. To satisfy this an automatic extension under this paragraph (b), an application for an Authority: 26 U.S.C. 7805 * * * section. automatic extension under this section Section 31.6081(a)–1 also issued under 26 (2) Procedures. In the case of an must— U.S.C. 6081.* * * information return on a form listed in (1) Be submitted on Form 8868, I Par. 10. Section 31.6081(a)–1 is paragraph (a) of this section, one ‘‘Application for Extension of Time To amended by: additional 30-day extension of time to File an Exempt Organization Return,’’ or 1. Revising paragraph (a)(2)(i). file the return may be allowed if the filer in any other manner as may be 2. Adding paragraph (d). or transmitter submits a request for the prescribed by the Commissioner; The revision and addition reads as additional extension before the (2) Be filed with the Internal Revenue follows: expiration of the automatic 30-day Service office designated in the application’s instructions on or before § 31.6081(a)–1 Extensions of time for filing extension. The request must— returns and other documents. (i) Be submitted on Form 8809 or in the date prescribed for filing the return; any other manner as may be prescribed (3) Show the full amount properly (a) * * * by the Commissioner; estimated as tentative tax for the exempt (2) Information returns of employers (ii) Explain in detail why the organization for the taxable year; and on Forms W–2 and W–3—(i) In general. additional time is needed; (4) Be accompanied by the full The Commissioner may grant an (iii) Be signed by the filer or remittance of the amount properly extension of time in which to file the transmitter; and estimated as tentative tax which is Social Security Administration copy of (iv) Otherwise satisfy the unpaid as of the date prescribed for the Forms W–2 and the accompanying requirements of § 1.6081–1. filing of the return. transmittal form which constitutes an (e) No effect on time to provide (c) Termination of automatic information return under § 31.6051– statement to recipients. An extension extension. The Commissioner may 2(a). For further guidance regarding under this section of time to file an terminate an automatic extension at any extensions of time to file the Social information return does not extend the time by mailing to the exempt Security Administration copy of Forms due date for providing a statement to the organization a notice of termination. W–2 and W–3, see § 1.6081–8 of this person with respect to whom the The notice must be mailed at least 10 chapter. information is required to be reported. days prior to the termination date * * * * * (f) Form W–2 filed on expedited basis. designated in such notice. The notice of (d) Effective date. Paragraph (a)(2)(i) This section does not apply to a return termination must be mailed to the of this section applies to requests for on Form W–2 (series) if the procedures address shown on the application for extensions of time to file the Social authorized in § 31.6081(a)–1(a)(2)(ii) of extension or to the exempt Security Administration copy of Forms this chapter allow an automatic organization’s last known address. For W–2 and W–3 due after December 7, extension of time to file the return. further guidance regarding the 2004. (g) Effective date. This section applies definition of last known address, see to requests for extension of time to file § 301.6212–2 of this chapter. § 31.6081(a)–1T [Removed] information returns due after December (d) Penalties. See sections 6651 and I Par. 11. Section 31.6081(a)–1T is 7, 2004. 6652(c) for failure to file an exempt removed.

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PART 53—FOUNDATION AND SIMILAR PART 55—EXCISE TAX ON REAL PART 156—EXCISE TAX ON EXCISE TAXES ESTATE INVESTMENT TRUSTS AND GREENMAIL REGULATED INVESTMENT I I Par. 12. The authority citation for part COMPANIES Par. 14. The authority citation for part 53 continues to read as follows: 156 is revised to read as follows: I Authority: 26 U.S.C. 6001, 6011, 6061, Authority: 26 U.S.C. 7805. Par. 13. The first sentence of the authority citation for part 55 is revised to 6071, 6091, 6161, and 7805. read as follows: I Par. 15. In the list below, for each Authority: 26 U.S.C. 6001, 6011, 6071, section indicated in the left column, 6091, and 7805. * * * remove the language in the middle column and add the language in the right column in its place:

Section Remove Add

1.6081–2(f), first sentence district director, including the Assistant Com- Commissioner. missioner (International), or the director of a service center. 1.6081–4(c), first sentence district director, including the Assistant Com- Commissioner. missioner (International), or the director of a service center. 1.6081–5(a)(1) 1.6031–1(e)(2) ...... 1.6031(a)–1(e)(2) 1.6081–6(d), first sentence district director, including the Assistant Com- Commissioner. missioner (International), or the director of a service center. 1.6081–7(d), first sentence district director, including the Assistant Com- Commissioner. missioner (International), or the director of a service center. 25.6081–1, second sentence district director or director of the service cen- Commissioner. ter. 31.6081(a)–1(b), first sentence district director or director of a service center Commissioner. 53.6081–1(a), first sentence District directors and directors of service cen- The Commissioner is ters are. 53.6081–1(b), first sentence to the district director or director of the service in accordance with the instructions to the ex- center with whom the return is to be filed. tension request form 55.6081–1, first sentence District directors and directors of service cen- The Commissioner is ters are. 156.6081–1(a), first sentence District directors and directors of service cen- The Commissioner is ters are. 156.6081–1(b), first sentence to the district director or director of the service in accordance with the instructions to the ex- center with whom the return is to be filed. tension form.

PART 301—PROCEDURE AND Approved: November 23, 2004. Monday, August 3, 2004 (69 FR 46401) ADMINISTRATION Mark E. Matthews, and corrected on Monday, October 18, Deputy Commissioner for Services and 2004 (69 FR 61309). The final I Par. 16. The authority citation for part Enforcement. regulations relate to statutory options. 301 continues to read as follows: Gregory Jenner, DATES: This document is effective on Authority: 26 U.S.C. 7805 * * * Acting Assistant Secretary of the Treasury. August 3, 2004. § 301.6651–1 [Amended] [FR Doc. 04–26837 Filed 12–6–04; 8:45 am] FOR FURTHER INFORMATION CONTACT BILLING CODE 4830–01–P : I Par. 17. Section 301.6651–1(c)(4) Erinn Madden, (202) 622–6030 (not a introductory text is amended by toll-free number). removing the language ‘‘or (b)’’, DEPARTMENT OF THE TREASURY removing paragraph (c)(4)(i), and SUPPLEMENTARY INFORMATION: redesignating paragraphs (c)(4)(ii) and Internal Revenue Service Background (c)(4)(iii) as paragraphs (c)(4)(i) and (c)(4)(ii), respectively. 26 CFR Parts 1 and 602 The final regulations (TD 9144) that [TD 9144] are the subject of these corrections are PART 602—OMB CONTROL NUMBERS under sections 421, 422, and 424 of the UNDER THE PAPERWORK RIN 1545–BA75 Internal Revenue Code. REDUCTION ACT Statutory Options; Correction Need for Correction I Par. 18. The authority citation for part 602 continues to read as follows: AGENCY: Internal Revenue Service (IRS), As published, the final regulations Treasury. Authority: 26 U.S.C. 7805. (TD 9144) contain errors that may prove ACTION: Correcting amendment. to be misleading and are in need of I Par. 19. In § 602.101, paragraph (b) is clarification. amended by removing the entries for SUMMARY: This document corrects final §§ 1.6081–8T and 1.6081–9T from the regulations (TD 9144) that were table. published in the Federal Register on

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List of Subjects ‘‘Under the rules of paragraphs (b)(2) and DEPARTMENT OF HOMELAND (b)(3) of this section,’’ in its place. 26 CFR Part 1 SECURITY Income taxes, Reporting and I 6. Section 1.422–5(f)(2), the second Coast Guard recordkeeping requirements. sentence is amended by removing the language ‘‘taxpayers may rely on either 33 CFR Part 100 26 CFR Part 602 the REG–122917–02 or this section.’’ and Reporting and recordkeeping adding the language ‘‘taxpayers may rely [CGD05–04–212] requirements. on either REG–122917–02 or this RIN 1625–AA08 Correction of Publication section.’’ in its place. I 7.Section 1.424–1 is amended by: Special Local Regulations for Marine I Accordingly, 26 CFR Parts 1 and 602 Events; Approaches to Annapolis I is corrected by making the following 1. Revising the sixth and seventh Harbor, Spa Creek and Severn River, correcting amendments: sentences in paragraph (a)(10), Example Annapolis, MD 8. PART 1—INCOME TAXES I 2. Adding a comma after the word AGENCY: Coast Guard, DHS. I Paragraph 1. The authority citation for ‘‘Thus’’ in the second sentence of ACTION: Notice of implementation of part 1 and continues to read in part as paragraph(e)(4)(viii). regulation. follows: The revision reads as follows: SUMMARY: The Coast Guard is Authority: 26 U.S.C. 7805 * * * implementing the special local § 1.424–1 Definitions and special rules regulations at 33 CFR 100.511 during § 1.421–1 [Corrected] applicable to statutory options. the Eastport Yacht Club Lights Parade, I 1. Section 1.421–1(j)(2), the second (a) * * * a marine event to be held December 11, sentence is amended by removing the 2004, on the waters of Spa Creek and language ‘‘the REG–122917–02 or this (10) * * * Example 8. * * * Based on these facts, a the Severn River at Annapolis, section.’’ and adding the language ‘‘REG– Maryland. These special local 122917–02 or this section.’’ in its place. new option to purchase 200 shares of Y at an option price of $25 per share could be regulations are necessary to control § 1.421–2 [Corrected] granted to E in complete substitution of E’s vessel traffic due to the confined nature of the waterway and expected vessel I 2. Section 1.421–2(f)(2), the second old option. In the alternative, it would also be permissible in connection with the spin congestion during the event. The effect sentence is amended by removing the off, to grant E a new option to purchase 100 will be to restrict general navigation in language ‘‘corporation at least 6 months shares of Y, at an option price of $25 per the regulated area for the safety of event after August 3, 2004, taxpayers may rely share, and for E to retain an option to participants, spectators and vessels on either the REG–122917–02 or purchase 100 shares of X under the old transiting the event area. section.’’ and adding the language option, with the option price adjusted to $25. DATES: 33 CFR 100.511 will be enforced ‘‘corporation occurring at least 6 months from 4:45 p.m. to 9:15 p.m. on after August 3, 2004, taxpayers may rely * * * * * December 11, 2004. on either REG–122917–02 or this I 8. Section 1.424–1(g)(2), the second FOR FURTHER INFORMATION CONTACT: section.’’ in its place. sentence is amended by removing the Ronald Houck, Marine Events § 1.422–1 [Corrected] language ‘‘on either the REG–122917–02 Coordinator, Commander, Coast Guard or this section.’’ and adding the language I 3. Section 1.422–1(b)(3), Example 2, Activities Baltimore, 2401 Hawkins ‘‘on either REG–122917–02 or this Point Road, Baltimore, MD 21226–1971, the fourth sentence is amended by section.’’ in its place. removing the language ‘‘consequences of (410) 576–2513. the disposition and the holding period PART 602—OMB CONTROL NUMBERS SUPPLEMENTARY INFORMATION: The for capital gain purposes begin on the UNDER THE PAPERWORK Eastport Yacht Club will sponsor a vesting date, six months after exercise.’’ REDUCTION ACT lighted boat parade on the waters of Spa and adding the language ‘‘consequences Creek and the Severn River at of the disposition, and the holding Annapolis, Maryland. The event will I Par. 2. The authority citation for part period for capital gain purposes begins consist of approximately 75 boats on the vesting date, six months after 602 continues to read as follows: traveling at slow speed along two exercise.’’ in its place. Authority: 26 U.S.C. 7805. separate parade routes in Annapolis Harbor. The participating boats will § 1.422–4 [Corrected] § 602.101 [Corrected] range in length from 10 to 90 feet, and I 4. Section 1.422–4(d), Example 5 (iii), I 9. Section 602.101(b) is amended by each will be decorated with holiday the last sentence is amended by adding the entry ‘‘1.422–1–1545–0820’’ lights. In order to ensure the safety of participants, spectators and transiting removing the language ‘‘it is treated as a to the table in numerical order. nonstatutory options in its entirety.’’ and vessels, 33 CFR 100.511 will be adding the language ‘‘it is treated as a Cynthia E. Grigsby, enforced for the duration of the event. nonstatutory option in its entirety.’’ in its Acting Chief, Publications and Regulations Under the provisions of 33 CFR 100.511, place. Branch, Legal Processing Division, Associate vessels may not enter the regulated area Chief Counsel, (Procedures and without permission from the Coast § 1.422–5 [Corrected] Administration). Guard Patrol Commander. Spectator I 5. Section 1.422–5(e), Example 2, the [FR Doc. 04–26745 Filed 12–6–04; 8:45 am] vessels may anchor outside the fourth sentence is amended by removing BILLING CODE 4830–01–P regulated area but may not block a the language ‘‘Under the rules of navigable channel. Because these paragraph (b)(2) and (b)(3) of this restrictions will be in effect for a limited section,’’ and adding the language period, they should not result in a

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significant disruption of maritime duration of the event. The special local SUPPLEMENTARY INFORMATION: The traffic. regulations will be enforced from 7 p.m. Baltimore Office of Promotion and the In addition to this notice, the to 8 p.m. e.d.t. on December 11, 2004. Arts will sponsor the ‘‘New Year’s Eve maritime community will be provided The pyrotechnic display will be Celebration’’ on December 31, 2004 to extensive advance notification via the launched from 1 barge located adjacent January 1, 2005 on the waters of the Local Notice to Mariners, marine to Crawford Bay within the regulated Inner Harbor, Patapsco River, Baltimore, information broadcasts, and area area. Under the provisions of 33 CFR Maryland. In order to ensure the safety newspapers, so mariners can adjust 100.523, a vessel may not enter the of participants, spectators and transiting their plans accordingly. regulated area unless it receives vessels, 33 CFR 100.526 will be Dated: November 24, 2004. permission from the Coast Guard Patrol enforced for the duration of the event. Ben R. Thomason, III, Commander. Spectator vessels may The special local regulations will be anchor outside the regulated area but enforced from 11:45 p.m. December 31, Captain, U.S. Coast Guard, Commander, Fifth Coast Guard District, Acting. may not block a navigable channel. 2004 to 12:45 a.m. e.d.t. on January 1, In addition to this notice, the 2005. The pyrotechnic display will be [FR Doc. 04–26841 Filed 12–6–04; 8:45 am] maritime community will be provided launched from 3 barges located adjacent BILLING CODE 4910–15–P extensive advance notification via the to the Inner Harbor within the regulated Local Notice to Mariners, marine area. Under the provisions of 33 CFR information broadcasts, and area DEPARTMENT OF HOMELAND 100.526, a vessel may not enter the newspapers, so mariners can adjust SECURITY regulated area unless it receives their plans accordingly. permission from the Coast Guard Patrol Coast Guard Dated: November 24, 2004. Commander. Spectator vessels may Ben R. Thomason, III, anchor outside the regulated area but 33 CFR Part 100 Captain, U.S. Coast Guard, Commander, Fifth may not block a navigable channel. Coast Guard District, Acting. In addition to this notice, the [CGD05–04–211] maritime community will be provided [FR Doc. 04–26843 Filed 12–6–04; 8:45 am] RIN 1625–AA08 extensive advance notification via the BILLING CODE 4910–15–P Local Notice to Mariners, marine Special Local Regulations for Marine information broadcasts, and area Events; Southern Branch of the DEPARTMENT OF HOMELAND newspapers, so mariners can adjust Elizabeth River, Portsmouth, VA SECURITY their plans accordingly. Dated: November 24, 2004. AGENCY: Coast Guard, DHS. Coast Guard Ben R. Thomason, III, ACTION: Notice of implementation of Captain, U.S. Coast Guard, Commander, Fifth regulation. 33 CFR Part 100 Coast Guard District, Acting. SUMMARY: The Coast Guard is [CGD05–04–214] [FR Doc. 04–26844 Filed 12–6–04; 8:45 am] BILLING CODE 4910–15–P implementing the special local RIN 1625–AA08 regulations at 33 CFR 100.523 during the Olde Towne Holiday Music Festival Special Local Regulations for Marine Fireworks Show to be held December Events; Patapsco River, Baltimore, MD ENVIRONMENTAL PROTECTION 11, 2004 on the Southern Branch of the AGENCY Elizabeth River at Portsmouth, Virginia. AGENCY: Coast Guard, DHS. These special local regulations are ACTION: Notice of implementation of 40 CFR Parts 9 and 712 necessary to provide for the safety of life regulation. [OPPT–2004–0089; FRL–7366–8] on navigable waters before, during and SUMMARY: The Coast Guard is RIN 2070–AB08 after the event. The effect will be to implementing the special local restrict general navigation in the regulations at 33 CFR 100.526 during Preliminary Assessment Information regulated area for the safety of the New Year’s Eve Celebration to be Reporting; Addition of Certain spectators and support vessels in the held December 31, 2004 through Chemicals event area. January 1, 2005 on the Patapsco River at AGENCY: Environmental Protection DATES: 33 CFR 100.523 will be enforced Baltimore, Maryland. These special Agency (EPA). from 7 p.m. to 8 p.m. EDT on December local regulations are necessary to 11, 2004. provide for the safety of life on ACTION: Final rule. FOR FURTHER INFORMATION CONTACT: navigable waters before, during and SUMMARY: This final rule, issued Michael Bowling, Marine Events after the event. The effect will be to pursuant to section 8(a) of the Toxic Coordinator, Commander, Coast Guard restrict general navigation in the Substances Control Act (TSCA), will Group Hampton Roads, 4000 Coast regulated area for the safety of require certain manufacturers (including Guard Blvd., Portsmouth, Virginia spectators and support vessels in the importers) of 3 chemical substances in 23703, (757) 483–8567. event area. the chemical category ‘‘Pyridinamines’’ SUPPLEMENTARY INFORMATION: The City DATES: 33 CFR 100.526 will be enforced and 20 chemical substances in the of Portsmouth will sponsor the ‘‘Olde from 11:45 p.m., December 31, 2004 to chemical category ‘‘Tungsten Towne Holiday Music Festival 12:45 a.m. e.d.t. on January 1, 2005. Compounds’’ to submit a one-time Fireworks’’ on December 11, 2004 on FOR FURTHER INFORMATION CONTACT: report on general production/ the Southern Branch of the Elizabeth Ronald Houck, Marine Events importation volume, end use, and River, Portsmouth, Virginia. In order to Coordinator, Commander, Coast Guard exposure-related information to EPA. ensure the safety of participants, Activities Baltimore, 2401 Hawkins The Interagency Testing Committee spectators and transiting vessels, 33 CFR Point Road, Baltimore, Maryland, (ITC), established under section 4(e) of 100.523 will be enforced for the 21226, (410) 576–2674. TSCA to recommend chemicals and

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chemical mixtures to EPA for priority the use of special characters, any form Agency, 1200 Pennsylvania Ave., NW., testing consideration, amends the TSCA of encryption, and be free of any defects Washington, DC 20460–0001; telephone Section 4(e) Priority Testing List through or viruses. For additional information number: (202) 564–8886; fax number: periodic reports submitted to EPA. The about EPA’s public docket visit (202) 564–4765; e-mail address: ITC recently added these 2 categories EDOCKET on-line or see the Federal [email protected]. containing 23 chemicals to the Priority Register of May 31, 2002 (67 FR 38102) SUPPLEMENTARY INFORMATION: Testing List. (FRL–7181–7). In addition, EPA is adding as required Submit your withdrawal requests and I. General Information under the Paperwork Reduction Act PAIR forms, identified by docket ID A. Does this Action Apply to Me? (PRA) the Office of Management and number OPPT–2004–0089, by one of the Budget (OMB) approved information following methods: You may be potentially affected by collection requirements contained in • Mail: Document Control Office this action if you manufacture (defined this final rule to EPA’s table of OMB (7407M), Office of Pollution Prevention by statute to include import) any of the control numbers in the Code of Federal and Toxics (OPPT), Environmental chemical substances that are listed in 40 Regulations (CFR). Protection Agency, 1200 Pennsylvania CFR 712.30(e) of the regulatory text of this document. Entities potentially DATES: This final rule is effective on Ave., NW., Washington, DC 20460– affected by this action may include, but January 6, 2005. For purposes of judicial 0001, Attention: 8(a) Auto-ITC. are not limited to: review, this rule shall be promulgated at • Hand delivery: OPPT Document • Chemical manufacturers (including 1 p.m. eastern daylight/standard time on Control Office (DCO), EPA East Bldg., importers), (NAICS 325, 324110), e.g., December 21, 2004. (See 40 CFR 23.5) Rm. 6428, 1201 Constitution Ave., NW., persons who manufacture (defined by For submission of a Preliminary Washington, DC. Attention: 8(a) Auto- statute to include import) one or more Assessment Information Reporting ITC. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding of the subject chemical substances. (PAIR) Form, see Unit III.B. of the This listing is not intended to be legal holidays. The telephone number SUPPLEMENTARY INFORMATION. exhaustive, but rather provides a guide A request to withdraw a chemical for the DCO is (202) 564–8930. Such for readers regarding entities likely to be from this rule, pursuant to 40 CFR deliveries are only accepted during the affected by this action. The North 712.30(c), must be received on or before Docket’s normal hours of operation, and American Industrial Classification December 21, 2004. (See Unit IV. of the special arrangements should be made System (NAICS) codes have been SUPPLEMENTARY INFORMATION.) for deliveries of boxed information. provided to assist you and others in Docket: All documents in the docket ADDRESSES: Instructions: Direct your determining whether this action might are listed in the EDOCKET index at submissions to docket identification (ID) apply to certain entities. If you have any http://www.epa.gov/edocket/. Although number OPPT–2004–0089. EPA’s policy questions regarding the applicability of listed in the index, some information is is that all comments received will be this action to a particular entity, consult not publicly available, i.e., CBI or other included in the public docket without the technical person listed under FOR information whose disclosure is change and may be made available FURTHER INFORMATION CONTACT. online at http://www.epa.gov/edocket/, restricted by statute. Certain other including any personal information material, such as copyrighted material, B. How Can I Access Electronic Copies provided, unless the comment includes is not placed on the Internet and will be of this Document and Other Related information claimed to be Confidential publicly available only in hard copy Information? Business Information (CBI) or other form. Publicly available docket In addition to EDOCKET (http:// information whose disclosure is materials are available either www.epa.gov/edocket/), you may access restricted by statute. Do not submit electronically in EDOCKET or in hard this Federal Register document information that you consider to be CBI copy at the OPPT Docket, EPA Docket electronically through the EPA Internet or otherwise protected through Center, EPA West, Rm. B102, 1301 under the ‘‘Federal Register’’ listings at EDOCKET, regulations.gov, or e-mail. Constitution Ave., NW., Washington, http://www.epa.gov/fedrgstr/. A The EPA EDOCKET and the DC. The Public Reading Room is open frequently updated electronic version of regulations.gov websites are from 8:30 a.m. to 4:30 p.m., Monday 40 CFR parts 9 and 712 is available on ‘‘anonymous access’’ systems, which through Friday, excluding legal E-CFR Beta Site Two at http:// means EPA will not know your identity holidays. The EPA Docket Center www.gpoaccess.gov/ecfr/. or contact information unless you Reading Room telephone number is provide it in the body of your comment. (202) 566–1744, and the telephone C. How Do I Submit CBI Information? If you send an e-mail comment directly number for the OPPT Docket, which is Do not submit this information to EPA to EPA without going through located in the EPA Docket Center, is through EDOCKET, regulations.gov, or EDOCKET or regulations.gov, your e- (202) 566–0280. e-mail. Clearly mark the part or all of mail address will be automatically FOR FURTHER INFORMATION CONTACT: For the information that you claim to be captured and included as part of the general information contact: Colby CBI. For CBI information in a disk or CD comment that is placed in the public Lintner, Regulatory Coordinator, ROM that you mail to EPA, mark the docket and made available on the Environmental Assistance Division outside of the disk or CD ROM as CBI Internet. If you submit an electronic (7408M), Office of Pollution Prevention and then identify electronically within comment, EPA recommends that you and Toxics, Environmental Protection the disk or CD ROM the specific include your name and other contact Agency, 1200 Pennsylvania Ave., NW., information that is claimed as CBI. In information in the body of your Washington, DC 20460–0001; telephone addition to one complete version of the comment and with any disk or CD-ROM number: (202) 554–1404; e-mail address: comment that includes information you submit. If EPA cannot read your [email protected]. claimed as CBI, a copy of the comment comment due to technical difficulties For technical information contact: Joe that does not contain the information and cannot contact you for clarification, Nash, Chemical Control Division claimed as CBI must be submitted for EPA may not be able to consider your (7405M), Office of Pollution Prevention inclusion in the public docket. comment. Electronic files should avoid and Toxics, Environmental Protection Information so marked will not be

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disclosed except in accordance with unnecessary. TSCA directs the ITC to previously and voluntarily submitted a procedures set forth in 40 CFR part 2. add chemicals to the Priority Testing PAIR Form to EPA may be able to notify List for which EPA should give priority EPA by letter of their desire to have this II. Background consideration. EPA also lacks the voluntary submission accepted in lieu A. What Action is the Agency Taking? authority to remove a chemical from the of a current data submission. (See 40 EPA is issuing a final TSCA section Priority Testing List once it has been CFR 712.30(a)(3)). Details of the PAIR reporting 8(a) PAIR rule which requires certain added by the ITC. As explained earlier requirements, including the basis for manufacturers (including importers) of in this rule, pursuant to 40 CFR exemptions, are provided in 40 CFR part 3 chemical substances in the chemical 712.30(c), once the ITC adds a chemical 712. Copies of the PAIR Form are category ‘‘Pyridinamines’’ and 20 to the Priority Testing List, EPA in turn available from the general information chemical substances in the chemical is obliged to add that chemical to the contact person listed under FOR FURTHER category ‘‘Tungsten Compounds’’ added list of chemicals subject to PAIR INFORMATION CONTACT. Copies of the to the ITC’s TSCA section 4(e) Priority reporting requirements, unless PAIR Form are also available Testing List to submit production and requested not to do so by the ITC. EPA electronically from the Chemical exposure reports. The regulatory text of promulgated this procedure in 1985 Testing and Information Branch Home this rule lists the 23 chemical after having solicited public comment Page on the Internet at http:// substances that are being added to the on the need for and mechanics of this www.epa.gov/opptintr/chemtest/ PAIR rule. procedure. (See the Federal Register of August 28, 1985 (50 FR 34805)). pairform.pdf/. B. What is the Agency’s Authority for Because that rulemaking established the C. Economic Analysis Taking this Action? procedure for adding ITC chemicals to The economic analysis for the EPA promulgated the PAIR rule in 40 the PAIR rule, it is unnecessary to addition of the 23 chemicals to the CFR part 712 under TSCA section 8(a) request comment on the procedure in TSCA section 8(a) PAIR rule is entitled (15 U.S.C. 2607(a)). This model TSCA this action. EPA believes this action Economic Analysis for the Addition of section 8(a) rule establishes standard does not raise any relevant issues for 23 Chemical Abstract Service (CAS)- reporting requirements for certain comment. EPA is not changing the PAIR numbered Chemicals Requested to be manufacturers (including importers) of reporting requirements or the process added to EPA’s Preliminary Assessment the chemicals listed in the rule at 40 set forth in 40 CFR 712.30(c). Finally, 40 Information Reporting (PAIR) Rule in CFR 712.30. These entities are required CFR 712.30(c) does provide EPA with the 53rd Report of the TSCA Interagency to submit a one-time report on general the discretion to withdraw a chemical Testing Committee (Ref. 2). A report was production/importation volume, end from the PAIR rule if a chemical located on only one of the 23 chemicals use, and exposure-related information manufacturer submits to EPA in EPA’s 2002 Chemical Update System using the PAIR Form entitled information showing why a chemical (CUS) utilizing the ITC-supplied CAS Manufacturer’s Report-Preliminary should be removed from the PAIR rule. numbers, yielding one company Assessment Information (EPA Form No. III. Final Rule producing that one chemical at one site. 7710–35). (See 40 CFR 712.28.) EPA Because the threshold for reporting to uses this model TSCA section 8(a) rule A. What Chemicals are to be Added ? CUS under the Inventory Update Rule to quickly gather current information on In this rule, EPA is adding 3 chemical through its most recent reporting cycle chemicals or chemical categories as substances in the chemical category in 2002 was 10,000 lbs., and the referenced in TSCA section 26(c) (15 ‘‘Pyridinamines’’ and 20 chemical threshold for PAIR reporting is 500 U.S.C. 2625(c)). substances in the chemical category kilograms (kg) (1,100 lbs.), and because This model TSCA section 8(a) rule ‘‘Tungsten Compounds’’ to the TSCA there was no requirement that inorganic provides for the addition of TSCA section 8(a) PAIR rule as requested by chemicals be reported to CUS (the section 4(e) Priority Testing List rd the ITC in its 53 Report (Ref. 1). majority of the tungsten compounds are chemicals. Whenever EPA announces inorganic), EPA assumed that one the receipt of an ITC Report, EPA can, B. Who Must Report Under this PAIR manufacturer exists per chemical to and without providing notice or an Rule? account for the possibility that there opportunity for public comment, amend Persons who manufactured (defined may be manufacturers producing PAIR- the model information-gathering rule by by statute to include import) the reportable amounts that were not adding the recommended (or chemicals identified in the regulatory captured by CUS. Given the designated) chemicals. The amendment text of this document during their latest assumptions in this unit, the costs and adding these chemicals to the PAIR rule complete corporate fiscal year must burden associated with this rule are is effective 30 days after the date of submit a PAIR Form for each site at estimated in the economic analysis (Ref. publication in the Federal Register. which they manufactured or imported a named substance. Exemptions from this 2) to be the following: C. Why is this Action Being Issued as a reporting requirement are found at 40 Reporting Costs (dollars) Final Rule? CFR 712.25. A separate form must be 23 reports estimated at $345.81 per EPA is publishing this action as a completed for each substance and report = $7,953.63 final rule without prior notice and an submitted to the Agency as specified in Total Cost = $31,162.43 opportunity for comment pursuant to 40 CFR 712.28 no later than March 7, Unit cost of this rule per site/report = the procedures set forth in 40 CFR 2005. Persons who have previously and $31,162.43 712.30(c). EPA finds that there is ‘‘good voluntarily submitted a PAIR Form to Total cost/23 total sites/reports = cause’’ under the Administrative the ITC may be able to submit a copy $1,354.89 Procedure Act (APA) (5 U.S.C. of the original report to EPA along with 553(b)(3)(B)) to make these amendments an accompanying letter notifying EPA of Reporting Burden (hours) without prior notice and comment. EPA the respondent’s intent that the Form familiarization: 7 hours/site x believes notice and an opportunity for submission be used in lieu of a current 23 sites =161 hours comment on this action are data submission. Persons who have Reporting: 490.71 hours

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Total burden hours = 651.71 hours of the TSCA Interagency Testing control numbers and their subsequent Unit burden of this rule per site/ Committee. April 2, 2004. codification in the CFR satisfies the display requirements of PRA and OMB’s report = 651.7 VI. Statutory and Executive Order implementing regulations at 5 CFR part Total hours/23 total sites/reports = Reviews 28.3 hours 1320. This ICR was previously subject to A. Executive Order 12866 public notice and comment prior to EPA Costs (dollars) and Burden (hours) The Office of Management and Budget OMB approval, and given the technical It is estimated that the annual cost to (OMB) has exempted actions under nature of the table, EPA finds that further notice and comment is the Federal Government will be TSCA section 8(a) related to the PAIR unnecessary. As a result, EPA finds that $5,072.24 (23 reports @ $220.53 each), rule from the requirements of Executive there is ‘‘good cause’’ under section plus 0.0581 Full Time Equivalents Order 12866, entitled Regulatory 553(b)(B) of the APA, 5 U.S.C. 553(b)(B), (FTEs). At an estimated $97,021 per Planning and Review (58 FR 51735, to amend this table without further FTE, the total of 0.0581 FTEs will cost October 4, 1993). EPA $5,632.35 in salaries, bringing the notice and comment. B. Paperwork Reduction Act total costs to the Federal Government to C. Regulatory Flexibility Act $10,704.59 (i.e., $5,072.24 + $5,632.35). The information collection Pursuant to section 605(b) of the IV. Requesting a Chemical be requirements contained in TSCA section Regulatory Flexibility Act (RFA), 5 Withdrawn from the Rule 8(a) PAIR rules have already been U.S.C. 601 et seq., the Agency hereby approved by OMB under the provisions certifies that this final rule will not have As specified in 40 CFR 712.30(c), EPA of PRA, 44 U.S.C. 3501 et seq., and OMB a significant adverse economic impact may remove a chemical substance, control number 2070–0054 (EPA ICR on a substantial number of small mixture, or category of chemical No. 0586). The collection activities in entities. The factual basis for the substances from this rule for good cause this final rule are captured by the Agency’s determination is presented in prior to January 6, 2005 if a chemical existing approval and do not require the small entity impact analysis manufacturer submits to EPA additional review and/or approval by prepared as part of the economic information showing why a chemical OMB. analysis for this rule (Ref. 2), and is should be removed from the PAIR. Any EPA estimates that the information briefly summarized here. chemical manufacturer who believes collection activities related to PAIR For this final rule, EPA has analyzed that the reporting required by this rule reporting for all chemicals in this final the potential small business impacts is not warranted for a chemical listed in rule will result in an annual public using the size standards established this rule, must submit to EPA detailed reporting burden of 28.3 hours per under the default definition of ‘‘small reasons for that belief. You must submit chemical, for a total of 651.7 hours for business’’ established under section your request to EPA on or before the 23 chemicals (Ref. 2). As defined by 601(3) of RFA, which basically uses the December 21, 2004 and in accordance the PRA and 5 CFR 1320.3(b), ‘‘burden’’ definition used in section 3 of the Small with the instructions provided in 40 means the total time, effort, or financial Business Act, 15 U.S.C. 632, under CFR 712.30(c), which are briefly resources expended by persons to which the Small Business summarized here. In addition, to ensure generate, maintain, retain, or disclose or Administration (SBA) establishes small proper receipt by EPA, you must provide information to or for a Federal business size standards for each identify docket ID number OPPT– 2004– Agency. This includes the time needed industry sector (13 CFR 121.201). The 0089 in the subject line on the first page to: Review instructions; develop, SBA size standards, which are primarily of your submission. If the Administrator acquire, install, and utilize technology intended to determine whether a withdraws a chemical substance, and systems for the purposes of business entity is eligible for mixture, or category of chemical collecting, validating, and verifying government programs and preferences substances from the amendment, a information, processing and reserved for small businesses (13 CFR Federal Register document announcing maintaining information, and disclosing 121.101), ‘‘seek to ensure that a concern this decision will be published no later and providing information; adjust the that meets a specific size standard is not than January 6, 2005. existing ways to comply with any dominant in its field of operation’’ (13 V. Materials in the Docket previously applicable instructions and CFR 121.102(b)). (See section 632(a)(1) requirements which have subsequently of the Small Business Act.) The official docket for this rule has changed; train personnel to be able to The small business size standards been established under docket ID respond to a collection of information; promulgated by SBA (61 FR 3280, 3289– number OPPT–2004–0089. The official search data sources; complete and 3291, January 31, 1996) for chemical public docket is available for review as review the collection of information; manufacturers are based solely on the specified in ADDRESSES. The following and transmit or otherwise disclose the number of employees, with a base is a listing of the documents that have information. threshold of 1,000 employees for the been placed in the official docket for Under PRA, an agency may not ultimate corporate parent, under which this rule: conduct or sponsor, and a person is not all businesses are considered small. Of 1. ITC. 2004. Fifty-Third Report of the required to respond to, an information the 23 businesses assumed to be affected ITC. Federal Register (69 FR 2468, collection request unless it displays a by this rule, it is unknown how many January 15, 2004) (FRL–7335–2). currently valid OMB control number. meet this definition of small business. Available online at http:// www.epa.gov/ The OMB control numbers for EPA’s To estimate the impact of the rule on a fedrgstr/. regulations are listed in 40 CFR part 9 business, the preferred method is the 2. EPA. 2004. Economic Analysis for and included on the related collection ‘‘sales test,’’ wherein costs for any the Addition of 23 Chemical Abstract instrument. EPA is amending the table individual firm are measured as a Service (CAS)-numbered Chemicals in 40 CFR part 9 to list the OMB percent of annual sales. At a maximum Requested to be added to EPA’s approval number for the information cost for any one firm of $1,511.78, the Preliminary Assessment Information collection requirements contained in firm’s total sales would have to be less Reporting (PAIR) Rule in the 53rd Report this final rule. This listing of the OMB than $160,000 for this rule to have an

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impact of even 1% of sales. Thus, EPA H. National Technology Transfer and Dated: December 1, 2004. has determined that this rule will not Advancement Act Charles M. Auer, impose a significant impact on a This action does not involve any Director, Office of Pollution Prevention and substantial number of small entities. technical standards that would require Toxics. D. Unfunded Mandates Reform Act Agency consideration of voluntary I Therefore, 40 CFR chapter I is consensus standards pursuant to section amended as follows: Pursuant to Title II of the Unfunded 12(d) of the National Technology Mandates Reform Act of 1995 (UMRA), Transfer and Advancement Act of 1995 PART 9—[AMENDED] Public Law 104–4, EPA has determined (NTTAA), Public Law 104–113, section that this rule does not contain a Federal 12(d) (15 U.S.C. 272 note). Section 12(d) I 1. By amending part 9 as follows: mandate that may result in expenditures of NTTAA directs EPA to use voluntary I a. The authority citation for part 9 of $100 million or more for State, local, consensus standards in its regulatory continues to read as follows: and tribal governments, in the aggregate, activities unless to do so would be or the private sector in any 1 year. In inconsistent with applicable law or Authority: 7 U.S.C. 135 et seq., 136–136y; addition, EPA has determined that this otherwise impractical. Voluntary 15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; rule will not significantly or uniquely consensus standards are technical 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 affect small governments. Accordingly, standards (e.g., materials specifications, U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, the rule is not subject to the 1321, 1326, 1330, 1342,1344, 1345 (d) and test methods, sampling procedures, and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, requirements of UMRA sections 202, business practices) that are developed or 203, 204, or 205. 1971–1975 Comp. p. 973; 42 U.S.C. 241, adopted by voluntary consensus 242b, 243, 246, 300f, 300g, 300g–1, 300g–2, E. Executive Order 13132 and 13175 standards bodies. The NTTAA directs 300g–3, 300g–4, 300g–5, 300g–6, 300j–1, EPA to provide Congress, through OMB, 300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq., Based on EPA’s experience with past explanations when the Agency decides 6901–6992k, 7401–7671q, 7542, 9601–9657, TSCA section 8(a) rules, State, local, not to use available and applicable 11023, 11048. and tribal governments have not been voluntary consensus standards. impacted by these rules, and EPA does I b. In § 9.1, the table is amended by not have any reasons to believe that any I. Executive Order 12898 removing the entries under the State, local, or tribal government will be This action does not involve special undesignated center heading ‘‘Chemical impacted by this rule. As a result, these considerations of environmental justice- Information Rules’’ and adding in their rules are not subject to the requirements related issues pursuant to Executive place the entry below to read as follows: in Executive Order 13132, entitled Order 12898, entitled Federal Actions to Federalism (64 FR 43255, August 10, Address Environmental Justice in § 9.1 OMB approvals under the Paperwork 1999) or Executive Order 13175, entitled Minority Populations and Low-Income Reduction Act. Consultation and Coordination with Populations (59 FR 7629, February 16, * * * * * Indian Tribal Governments (65 FR 1994). 67249, November 6, 2000). 40 CFR citation OMB control No. J. Congressional Review Act F. Executive Order 13045 The Congressional Review Act, 5 ***** Chemical Information Rules Executive Order 13045, entitled U.S.C. 801 et seq., as added by the Small Protection of Children from Business Regulatory Enforcement Part 712 ...... 2070–0054 Environmental Health Risks and Safety Fairness Act of 1996, generally provides ***** Risks (62 FR 19885, April 23,1997), does that before a rule may take effect, the not apply to this rule, because it is not agency promulgating the rule must * * * * * ‘‘economically significant’’ as defined submit a rule report, which includes a under Executive Order 12866, and does copy of the rule, to each House of the PART 712—[AMENDED] not concern an environmental health or Congress and to the Comptroller General safety risk that may have a of the United States. EPA will submit a I 2. By amending part 712 as follows: disproportionate effect on children. This report containing this rule and other I rule requires the one-time reporting on required information to the U.S. Senate, a. The authority citation for part 712 general production/importation volume, the U.S. House of Representatives, and continues to read as follows: end use, and exposure-related the Comptroller General of the United Authority: 15 U.S.C. 2607(a). information to EPA by certain States prior to publication of the rule in manufacturers (including importers) of the Federal Register. This rule is not a I b. In § 712.30, the table in paragraph (e) certain chemicals requested by the ITC ‘‘major rule’’ as defined by 5 U.S.C. is amended by adding in alphabetical to be added to the PAIR rule in its 53rd 804(2). order the category ‘‘Pyridinamines’’ Report (Ref. 1). containing 3 chemicals in ascending List of Subjects CAS number order and the category G. Executive Order 13211 40 CFR Part 9 ‘‘Tungsten Compounds’’ containing 20 This rule is not subject to Executive Environmental protection, Reporting chemicals in ascending CAS number Order 13211, entitled Actions that and recordkeeping requirements. order to read as follows: Significantly Affect Energy Supply, 40 CFR Part 712 § 712.30 Chemical lists and reporting Distribution, or Use (66 FR 28355, May Environmental protection, Chemicals, periods. 22, 2001), because this action is not Hazardous substances, Health and expected to affect energy supply, safety, Reporting and recordkeeping * * * * * distribution, or use. requirements. (e)***

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CAS No. Substance Effective date Reporting date

***** Pyridinamines: 462–08–8 3-Pyridinamine ...... January 6, 2005 March 7, 2005 504–24–5 4-Pyridinamine ...... January 6, 2005 March 7, 2005 504–29–0 2-Pyridinamine ...... January 6, 2005 March 7, 2005 ***** Tungsten compounds: 1314–35–8 Tungsten oxide (WO3) ...... January 6, 2005 March 7, 2005 7440–33–7 Tungsten ...... January 6, 2005 March 7, 2005 2 7783–03–1 Tungstate (WO4 -), dihydrogen, (T-4)- January 6, 2005 March 7, 2005 7783–82–6 Tungsten fluoride (WF6), (OC-6-11)- .... January 6, 2005 March 7, 2005 2 7790–60–5 Tungstate (WO4 -), dipotassium, (T-4)- January 6, 2005 March 7, 2005 7790–85–4 Cadmium tungsten oxide (CdWO4) ...... January 6, 2005 March 7, 2005 2 10213–10–2 Tungstate (WO4 -), disodium, dihy- January 6, 2005 March 7, 2005 drate, (T-4)-. 11105–11–6 Tungsten oxide (WO3), hydrate ...... January 6, 2005 March 7, 2005 11120–01–7 Sodium tungsten oxide ...... January 6, 2005 March 7, 2005 10 11120–25–5 Tungstate (W12(OH)2O40 -), January 6, 2005 March 7, 2005 decaammonium. 12027–38–2 Tungstate(4-),[.mu.12-[orthosilicato(4-)- January 6, 2005 March 7, 2005 .kappa.O:.kappa.O:.kappa.O: .kappa.O’:.kappa.O’:.kappa.O’: .kappa.O″:.kappa.O″:.kappa.O″ :.kappa.O’″:.kappa.O’″ :.kappa.O’″]]tetracosa-.mu.- oxododecaoxododeca-, tetrahydrogen. 6 12028–48–7 Tungstate (W12(OH)2O38 -), January 6, 2005 March 7, 2005 hexaammonium. 12036–22–5 Tungsten oxide (WO2) ...... January 6, 2005 March 7, 2005 12067–99–1 Tungsten hydroxide oxide phosphate ... January 6, 2005 March 7, 2005 12138–09–9 Tungsten sulfide (WS2) ...... January 6, 2005 March 7, 2005 6- 12141–67–2 Tungstate (W12(OH)2O38 ), January 6, 2005 March 7, 2005 hexasodium. 13283–01–7 Tungsten chloride (WCl6), (OC-6-11)- .. January 6, 2005 March 7, 2005 2 13472–45–2 Tungstate (WO4 -), disodium, (T-4)- ..... January 6, 2005 March 7, 2005 14040–11–0 Tungsten carbonyl (W(CO)6), (OC-6- January 6, 2005 March 7, 2005 11)-. 23321–70–2 Tungsten oxide (WO3), dihydrate ...... January 6, 2005 March 7, 2005 *****

* * * * * FOR FURTHER INFORMATION CONTACT: Bill This is a benefit that would accrue to [FR Doc. 04–26821 Filed 12–6–04; 8:45 am] Howell, OS, Office of Budget, (202) 208– Congress, the Department, BLM, and to 5308 (Commercial or FTS). Persons who the counties as well. BILLING CODE 6560–50–S use a telecommunications device for the This rule is an administrative action deaf (TDD) may call the Federal to reassign PILT responsibilities from Information Relay Service at 1–800– one office to another. The changes in the DEPARTMENT OF THE INTERIOR 877–8339, 24 hours a day, seven days a regulations pursuant to the notice Office of the Secretary week, to contact Mr. Howell. consist of moving the implementing SUPPLEMENTARY INFORMATION: regulations from one CFR part to Bureau of Land Management I. Background another. There is no substantive change II. Final Rule as Adopted in the Department’s PILT 43 CFR Parts 44 and 1880 III. Procedural Matters responsibilities. Therefore, DOI has determined that it has no substantive RIN 1093–AA09 I. Background impact on the public and for good cause This rule moves the existing finds under 5 U.S.C. 553(b)(B) and Payment in Lieu of Taxes regulations at 43 CFR 1881 to 43 CFR 553(d)(3) that notice and public AGENCY: Office of the Secretary; Bureau Part 44 to reflect the transfer of procedure thereon are unnecessary and of Land Management, Interior. responsibility for operating the PILT that this rule may take effect upon ACTION: Final rule. program from the Bureau of Land publication. Management to the Office of the SUMMARY: This rule amends the Code of Secretary, DOI. II. Final Rule as Adopted Federal Regulations to reflect the Elevating PILT to the Department The Department adopts the revisions transfer of responsibility for operating level streamlines the budget process, to 43 CFR that deletes subpart 1881 and the Payment in Lieu of Taxes (PILT) eliminates the competition for dollars at inserts new Part 44 to reflect the transfer program from the Bureau of Land the agency level, and ensures that of responsibility for operating the PILT Management to the Department of the appropriate emphasis can be directed to program from the Bureau of Land Interior (‘‘DOI’’), Office of the Secretary. PILT as necessary, with a multibureau, Management to the Department of the DATES: Effective Date: December 7, 2004. Departmental funding contribution. Interior, Office of the Secretary.

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III. Procedural Matters do these proposed regulations have a implications. The rule is administrative significant or unique effect on State, in nature, simply transferring a function Executive Order 12866, Regulatory local, or tribal governments or the from one bureau to a Secretarial office. Planning and Review private sector. The rule is administrative Executive Order 12988, Civil Justice This rule is not a significant rule and in nature, simply transferring a function Reform was not subject to review by the Office from one bureau to a Secretarial office. of Management and Budget under Therefore, BLM is not required to The Office of the Solicitor has Executive Order 12866. The Office of prepare a statement containing the determined that this rule will not Management and Budget has information required by the Unfunded unduly burden the judicial system and determined that this rule: Does not have Mandates Reform Act (2 U.S.C. 1531 et that it meets the requirements of an annual economic impact of $100 seq.) sections 3(a) and 3(b)(2) of Executive million or more; will not have an Order 12988. adverse impact in a material way on the Executive Order 12630, Governmental economy, productivity, competition, Actions and Interference With Author: The principal author is Bill jobs, the environment, public health or Constitutionally Protected Property Howell, Budget Group, assisted by John safety, or State, local, or tribal Rights (Takings) Strylowski, Office of Executive Secretary. governments or communities; does not This rule does not represent a Paperwork Reduction Act of 1995 pose a serious inconsistency or interfere government action capable of interfering with an action taken or planned by with constitutionally protected property These regulations contain information another agency; does not alter the rights. Therefore, we have determined collection requirements. As required by budgetary effects of entitlements, grants, that the regulation would not cause a the Paperwork Reduction Act of 1995 user fees, or loan programs or the right taking of private property. No further (44 U.S.C. 3501 et seq.), we submitted or obligations of their recipients; and discussion of takings implications are a copy of the proposed information will not have novel legal or policy required under this Executive Order. collection requirements to the Office of implications. Therefore, we do not have Management and Budget (OMB) for Executive Order 13132, Federalism to assess the potential costs and benefits review. The Department will not require of the rule under section 6(a)(3) of this This rule will not have a substantial collection of this information until OMB order. The rule is administrative in direct effect on the States, on the has given its approval. relationship between the National nature, simply transferring a function Executive Order 13211, Actions from one bureau to a Secretarial office. Government and the States, or on the distribution of power and Concerning Regulations That Regulatory Flexibility Act responsibilities among the various Significantly Affect Energy Supply, This rule does not require a regulatory levels of government. The rule is Distribution or Use flexibility analysis. Congress enacted administrative in nature, simply In accordance with Executive Order the Regulatory Flexibility Act of 1980 transferring a function from one bureau 13211, BLM has determined that the (RFA), as amended (5 U.S.C. 601–612), to a Secretarial office. Therefore, in proposed rule will not have substantial to ensure that Government regulations accordance with Executive Order 13132, direct effects on the energy supply, do not necessarily or disproportionately BLM has determined that this proposed distribution, or use, including a shortfall burden small entities. The RFA requires rule does not have sufficient Federalism in supply or price increase. a regulatory flexibility analysis if a rule implications to warrant preparation of a has a significant economic impact, Federalism Assessment. List of Subjects either detrimental or beneficial, on a National Environmental Policy Act 43 CFR Part 44 substantial number of small entities. (NEPA) This rule would not have significant Administrative practice and economic impacts on small entities This rule is subject to a categorical procedure, Financial assistance-local under the RFA (5 U.S.C. 601 et seq.). exclusion under NEPA. The Department governments, Grant programs-natural The rule is administrative in nature, has determined that this action to resources, Land Management Bureau, simply transferring a function from one transfer responsibility of the PILT Act is Loan programs-natural resources, bureau to a Secretarial office. a regulation of financial, technical, and Payments in lieu of taxes, Public lands, legal nature under section 101(2)(C) of Public lands-mineral resources. Small Business Regulatory Enforcement the National Environmental Policy Act, Fairness Act pursuant to 516 Departmental Manual, 43 CFR Part 1880 This rule is not a ‘‘major rule’’ as Chapter 2, Appendix 1, Item 1.10. defined by the Small Business Therefore, pursuant to the Council on Administrative practice and Regulatory Enforcement Fairness Act (5 Environmental Quality regulations (40 procedure, Financial assistance-local U.S.C. 804(2)). This rule will not have CFR 1508.4) and the environmental governments, Grant programs-natural a significant impact on the economy or policies and procedures of the resources, Land Management Bureau, on small businesses in particular. As Department of the Interior, the Loan programs-natural resources, discussed above, this rule would update Department has found that neither an Payments in lieu of taxes, Public lands, existing regulations to incorporate environmental assessment nor an Public lands-mineral resources. statutory changes to the authorizing environmental impact statement is Dated: November 22, 2004. legislation and do not affect small required. J. Steven Griles, businesses. Executive Order 13175, Consultation Deputy Secretary of the Interior. Unfunded Mandates Reform Act and Coordination With for Indian Tribal I For the reasons set forth in the This rule does not impose an Governments preamble, subtitle A and Chapter II of unfunded mandate on State, local, or In accordance with Executive Order title 43 of the Code of Federal tribal governments or the private sector 13175, we have found that this rule does Regulations are amended as set forth of more than $100 million per year; nor not include policies that have tribal below:

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43 CFR Subtitle A—Office of the taxes to local governments for (3) The Governments of the District of Secretary of the Interior entitlement lands within their Columbia, the Commonwealth of Puerto I 1. Part 44 is added to read as follows: boundaries. Rico, Guam, and the Virgin Islands. Payments in lieu of taxes (PILT) § 44.11 What are the definitions of terms means Federal payments disbursed to PART 44—FINANCIAL ASSISTANCE, used in this subpart? LOCAL GOVERNMENTS local governments to compensate for the Entitlement land means land owned exemption of real estate taxes on Sec. by the United States: entitlement lands within their General Information (1) That is in the National Park boundaries. System or the National Forest System, 44.10 What is the purpose of this subpart? Section 6902 (31 U.S.C. 6902) 44.11 What are the definitions of terms including wilderness areas, and national payments means Federal payments used in this subpart? forest lands in northern Minnesota disbursed to local governments 44.12 Who is eligible to receive PILT described in 16 U.S.C. 577d–577d–1; containing entitlement lands. payments? (2) That is administered by the Section 6904 (31 U.S.C. 6904) Payments to Local Governments Containing Secretary of the Interior through the payments means Federal payments Entitlements Lands Office of the Secretary; disbursed to local governments for 44.20 How does the Department process (3) That is dedicated to the use of the acquisitions or interest in lands payments to local governments whose Government for water resource acquired for addition to the National jurisdictions contain entitlement lands? development projects; Park System or National Forest 44.21 How does the Department calculate (4) On which there are semiactive or Wilderness Areas. payments to local governments whose inactive installations, excluding Section 6905 (31 U.S.C. 6905) jurisdictions contain entitlement lands? industrial installations, that the payments means Federal payments 44.22 Are there any special circumstances Department of Army keeps for disbursed to local governments for lands that affect the way the Department mobilization and reserve component in the Redwood National Park or Lake calculates PILT payments? Tahoe Basin. 44.23 How does the Department certify training; payment computations? (5) That is a dredge disposal area § 44.12 Who is eligible to receive PILT 44.30 How does the Department make under the jurisdiction of the Army payments? payments for acquired lands? Corps of Engineers; (a) Each local government containing 44.31 How does the Department calculate (6) That is located in the vicinity of payments for acquired lands? entitlement lands may receive a PILT Purgatory River Canyon and Pinon payment. Payments to Local Governments for Interest Canyon, Colorado, and was acquired by (b) A local government may not in Lands in the Redwood National Park or the United States after December 23, receive a payment for land owned or Lake Tahoe Basin 1981, to expand the Fort Carson military administered by a State or local 44.40 How does the Department process installation; or government that was exempt from real payments for lands in the Redwood (7) That is a reserve area as defined in estate taxes when the land was National Park or Lake Tahoe Basin? 16 U.S.C. 715s(g)(3), which is an area of 44.41 How does the Department calculate conveyed to the United States. However, land withdrawn from the public domain a local government may receive a PILT payments for lands in the Redwood and administered, either solely or National Park or Lake Tahoe Basin? payment for land when: primarily, by the Secretary of the (1) A State or local government State and Local Governments’ Interior, through the Fish and Wildlife acquires from a private party to donate Responsibilities After the Department Service. Distributes Payments to the United States within eight years Local government means a unit of of acquisition; 44.50 What are the local governments’ general local government, which can (2) A State acquires through an responsibilities after receiving payments include any of the following: exchange with the United States if the under this part? (1) A county, parish, township, 44.51 Are there general procedures land acquired was entitlement land; or applicable to all PILT payments? borough, or city, (other than in Alaska), (3) In the State of Utah, that the 44.52 May a State enact legislation to where the city is independent of any United States acquires for Federal land, reallocate or redistribute PILT payments? other unit of general local government, royalties or other assets if, at the time of 44.53 What will the Department do if a that: acquisition, a local government was State enacts distribution legislation? (i) Is within the class(es) of such entitled to receive payments in lieu of 44.54 What happens if a State repeals or political subdivision in a State that the taxes from the State of Utah for the land; amends distribution legislation? Secretary of the Interior determines, in provided that the payment to the local 44.55 Can a unit of general local his or her discretion, to be the principal government protest the results of government does not exceed the payment computations? provider(s) of governmental services payment the State would have 44.56 How does a unit of general local within the State; and disbursed if the land had not been government file a protest? (ii) Is a unit of general local acquired. 44.57 Can a unit of general local government, as determined by the Payments to Local Governments government appeal a rejection of a Secretary of the Interior on the basis of Containing Entitlement Lands protest? the same principles as were used by the Authority: Public Law 94–565, 90 Stat. Secretary of Commerce on January 1, § 44.20 How does the Department process 2662, as amended, 31 U.S.C. 6901–6907. 1983, for general statistical purposes; payments to local governments whose jurisdictions contain entitlement lands? General Information (2) Any area in Alaska that is within the boundaries of a census area used by This section describes how the § 44.10 What is the purpose of this the Secretary of Commerce in the Department processes payments to local subpart? decennial census, but that is not governments whose jurisdictions This subpart sets forth procedures the included within the boundaries of a contain entitlement lands (section 6902 Department of the Interior uses in governmental entity described under payments). disbursing Federal payments in lieu of paragraph (1) of this definition; or (a) The Department:

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(1) Determines the eligibility of each (1) The Act of June 20, 1910 (Arizona Standards of Audit of Governmental local government, conferring when and New Mexico Enabling Acts) (ch. Organizations, Programs, Activities and necessary with the Bureau of the 310, 36 Stat 557); Function, (available from the Census, officials of appropriate State (2) Section 33 of the Bankhead-Jones Superintendent of Documents, U.S. and local governments, and officials of Farm Tenant Act (7 U.S.C. 1012); Government Printing Office, the agency administering the (3) The Act of May 23, 1908 (Knutson- Washington, DC 20402); and entitlement land; Vandenberg Act regarding Forest (ii) The Audit Guide for Payments in (2) Computes the amount of the Service timber sales contracts) (16 Lieu of Taxes issued by the Department payment disbursed to each local U.S.C. 500); of the Interior. government; and (4) Section 5 of the Act of June 22, (b) The Department’s Office of the (3) Certifies the amount of the 1948 (Payments to Minnesota from Inspector General will assist the payment disbursed to each local northern Minnesota National Forest Department, under the provisions of government. receipts) (16 U.S.C. 577g–l); sections 4 and 6 of the Inspector General (b) The Department disburses a (5) Section 401(c)(2) of the Act of June Act of 1978 (5 U.S.C. Appendix), to payment each fiscal year to each local 15, 1935 (Payments to local implement and administer the audit government containing entitlement governments from National Wildlife requirements in paragraph (a)(2) of this lands. Refuge System receipts) (16 U.S.C. section. (c) The State of Alaska is required to 715s(c)(2)); (c) The Office of the Inspector General distribute the payment it receives to (6) Section 17 of the Federal Power will: home rule cities and general law cities Act (16 U.S.C. 810); (1) Develop appropriate audit (as such cities are defined by the State) (7) Section 35 of the Act of February guidelines that State auditors, that are located within the boundaries of 25, 1920 (Mineral Leasing Act) (30 independent Certified Public the local government entitled to the U.S.C. 191); Accountants, or independent public payment. (8) Section 6 of the Mineral Leasing accountants must use to audit the Act for Acquired Lands (30 U.S.C. 355); statements of the Governors or their § 44.21 How does the Department (9) Section 3 of the Act of July 31, calculate payments to local governments designated officials and to certify the whose jurisdictions contain entitlement 1947 (Materials Act of 1947) (30 U.S.C. audits; and lands? 603); and (2) Furnish copies of the guides to the (10) Section 10 of the Act of June 28, (a) To calculate section 6902 Governor or designated official each 1934 (Taylor Grazing Act) (43 U.S.C. year. You should send questions on the payments, the Department obtains the 315i). necessary data on Federal and State use or application of this guide to the payments from several sources: § 44.22 Are there any special Office of Inspector General, U.S. (1) Federal agencies provide the circumstances that affect the way the Department of the Interior, Washington, amount of entitlement land within the Department calculates PILT payments? DC 20240. boundaries of each local government as If a local government eligible for (d) The Department may waive the of the last day of the fiscal year payments under this subpart requirement to certify audits if the preceding the fiscal year for which the reorganizes, the Department will: General Accounting Office or the Office Department disburses the payment; (a) Calculate payments for the fiscal of the Inspector General verifies the (2) The Governor or designated year in which the reorganization information in statements the Governor official provides the amount of money occurred as if the reorganization had not or designated official furnishes or if the transfers (land revenue sharing occurred; and Department determines it is not payments) disbursed by the State during (b) Disburse any payment due to each necessary. Payments to Local the previous fiscal year to eligible local new unit based on the amount of Governments for Acquisitions or governments under the payment laws eligible acreage in that unit. Interest in Lands Acquired for Addition listed under 31 U.S.C. 6903(a)(1) and in to the National Park System or National paragraph (d) of this section; and § 44.23 How does the Department certify Forest Wilderness Areas (31 U.S.C. payment computations? (3) The Bureau of the Census provides 6904). statistics on the population of each local (a) The Department will certify a government. payment computation only after § 44.30 How does the Department make (b) The Department consults with the receiving a statement showing all land payments for acquired lands? affected local government and the revenue sharing payments that each This section describes how the administering agency to resolve local government received from the Department disburses payments for conflicts in land records and other data State during the previous fiscal year. As Acquisitions or Interest in Lands sources. used in this paragraph, ‘‘land revenue Acquired for Addition to the National (c) The Department calculates the sharing payments’’ means payments Park System or National Forest amount of payment using: made from revenues derived from the Wilderness Areas (section 6904 (1) The amount of actual payment laws listed under 31 U.S.C. payments). appropriations; 6903(a)(1). The statement must: (a) The Department disburses section (2) The formula in 31 U.S.C. (1) Be signed by the Governor or a 6904 payments to qualified local 6903(b)(1), which includes inflation designated official of the State in which governments only if the administering adjustments; and the local government is located; and agency supplies the following (3) Federal and State payments (2) Be accompanied by a certification, information for each qualified local disbursed during the previous fiscal signed by a State Auditor, an government: year to local governments under the independent Certified Public (1) Acreage or interests in land for land payment laws listed under 31 Accountant, or an independent public which the payments are authorized; and U.S.C. 6903(a)(1). accountant, that the statement has been (2) Any other information the (d) The laws listed in 31 U.S.C. audited in accordance with: Department may require to certify 6903(a)(1) and referred to in paragraphs (i) Auditing standards established by payments to each qualified local (a) and (c) of this section are: the U.S. Comptroller General in government.

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(b) The Department disburses (2) The Department will begin annual of general local government (see 31 payments under this section only for a payment of the deferred amount U.S.C. 6907); period of 5 years from the date the land (calculated the same as in paragraph (a) (b) Provide the Department a copy of was conveyed to the United States. of this section) starting with the sixth the legislation within 60 days of fiscal year following Federal enactment; § 44.31 How does the Department acquisition. (c) Provide the name and address of calculate payments for acquired lands? (3) The Department disburses the State government office to which the The Department calculates section payment of the deferred amount until Department should send the payment; 6904 payments by determining 1 the total amount deferred during the (d) Distribute funds to its smaller percent of the fair market value of the first 5 years is paid in full. units of general local government within purchased land and comparing the 30 days of receiving the payment; and result to the amount of real estate taxes State and Local Governments’ (e) Not reduce the payment made to paid on the land in the year before Responsibilities After the Department smaller units of general local Federal acquisition. The payment to Distributes Payments government to pay the cost of State legislation which reallocates or qualified local governments will be the § 44.50 What are the local governments’ lesser of the two. responsibilities after receiving payments redistributes payments. Payments to Local Governments for under this part? § 44.53 What will the Department do if a Interest in Lands in the Redwood (a) The local government may use State enacts distribution legislation? National Park or Lake Tahoe Basin section 6902 payments for any If a State enacts distribution governmental purpose. legislation, the Department will: § 44.40 How does the Department process (b) Within 90 days of receiving (a) Notify the State that a single payments for lands in the Redwood sections 6904 and 6905 payments, the payment will be disbursed to the National Park or Lake Tahoe Basin? local government must distribute the designated State government office This section describes how the funds to the affected units of general beginning with the Federal fiscal year Department disburses payments for local government and affected school following the fiscal year in which the lands in the Redwood National Park or districts. The affected units of general State enacted legislation; and Lake Tahoe Basin (section 6905 local government and school districts (b) Provide the State with information payments). may use sections 6904 and 6905 that identifies the entitlement lands data (a) The Department disburses payments for any governmental on which the Department bases the payments to qualified local governments purpose. payment. only if the administering agency (c) The local government must supplies the following information for distribute section 6904 and 6905 § 44.54 What happens if a State repeals or amends distribution legislation? each qualified local government: payments in proportion to the tax (1) Acreage or interests in land for revenues assessed and levied by the (a) If a State repeals or amends which the payments are authorized; and affected units of general local distribution legislation, the State must (2) Any other information the government and school districts in the immediately notify the Department in Department may require to certify Federal fiscal year before the Federal writing of this fact and send the payments to each qualified local Government acquired the entitlement Department a copy of the new law. government. lands. The Redwoods Community (b) When the Department receives a (b) The Department disburses College District in California is an notification under paragraph (a) of this payments until 5 percent of the fair affected school district for this purpose. section, it must: (1) Determine if the State’s process market value is paid in full. (d) Within 120 days of receiving complies with 31 U.S.C. 6907. If the payments, the local government must § 44.41 How does the Department Department determines that it does not, certify to the Department that it has calculate payments for lands in the we must notify the designated State made an appropriate distribution of Redwood National Park or Lake Tahoe government office that the Department funds. Basin? will disburse payment directly to the (a) The Department calculates section § 44.51 Are there general procedures eligible local governments; and 6905 payments by determining 1 applicable to all PILT payments? (2) Start the payments: percent of the fair market value of the (a) The minimum payment that the (i) In the current Federal fiscal year, purchased land and comparing the Department will disburse to any local if the Department receives a copy of the result to the amount of real estate taxes government is $100.00 (one hundred State’s amendatory legislation before paid on the land in the year prior to dollars). July 1; or Federal acquisition. The payment to (b) If Congress appropriates (ii) Start the payments in the next qualified units of general local insufficient monies to provide full Federal fiscal year, if the Department government will be the lesser of the two. payment to each local government receives a copy of the State’s (b) The Department disburses during any fiscal year, the Department amendatory legislation after July 1. payments annually for a period of 5 will reduce proportionally all payments § 44.55 Can a unit of general local years beginning in the year immediately in that fiscal year. government protest the results of payment following the year of Federal acquisition computations? of the land or interest. § 44.52 May a State enact legislation to Any affected local government may (1) The difference, if any, between the reallocate or redistribute PILT payments? file a protest with the Department. amounts actually paid during each of A State may enact legislation to the 5 years and 1 percent of the fair reallocate or redistribute PILT § 44.56 How does a unit of general local market value will be deferred to future payments. If a State enacts legislation, it government file a protest? years. However, a payment or any must: The protesting local government portion of a payment not paid because (a) Notify the Department if the must: Congress appropriated insufficient legislation requires reallocating or (a) Submit evidence to indicate the monies will not be deferred. redistributing payments to smaller units possibility of errors in the computations

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or the data on which the Department inspection and copying during regular be a need for further Commission action bases the computations; and business hours in the FCC Reference in defining out-of-band limits for RF (b) File the protest by the first Center (Room CY–A257), 445 12th lights in the 2.45 GHz band at that time. business day of the calendar year Street, SW., Washington, DC 20554. The The Commission therefore decided to following the end of the fiscal year for full text of this document also may be terminate the proceeding without which the Department made the purchased from the Commission’s prejudice to its substantive merits and payments. duplication contractor, Best Copy and stated that should any party wish to Printing, Inc., Portals II, 445 12th Street, pursue the issues in this proceeding in § 44.57 Can a unit of general local SW., Room CY–B402, Washington, DC the future, the Commission would government appeal a rejection of a protest? 20554; telephone (202) 863–2893; fax evaluate them in the context of a new Any affected local government may (202) 863–2898. proceeding. appeal the Department’s decision to 5. On July 23, 2003, the Satellite reject a protest to the Interior Board of Summary of the Report and Order Radio Licensees submitted a Joint Land Appeals under 43 CFR part 4. 1. In the Order, the Commission Petition for Clarification in this 43 CFR CHAPTER II—BUREAU OF LAND determined that there was no need to proceeding, in which they seek specific MANAGEMENT, DEPARTMENT OF THE define out-of-band limits for radio clarification that RF lighting devices INTERIOR frequency (RF) lights in the 2.45 GHz will not be permitted to operate in the band. The Commission dismissed the 2.45 GHz band and that ‘‘before the PART 1880—[AMENDED] Joint Petition and rejected the Satellite Commission considers permitting any Radio Licensees’ request to prohibit the such operations, it will either establish I 2. Subpart 1881 (§§ 1881.10 through operation of RF lights in the 2.45 GHz another rulemaking, or provide ample 1881.57) is removed. band. We further affirm our decision to notice to affected parties such as the [FR Doc. 04–26803 Filed 12–6–04; 8:45 am] terminate the proceeding without Satellite Radio Licensees.’’ BILLING CODE 4310–RK–P prejudice to its substantive merits. 6. The Satellite Radio Licensees 2. On April 1, 1998, the Commission contend that in terminating the adopted a Notice of Proposed Rule proceeding by the Order, the FEDERAL COMMUNICATIONS Making (NPRM), 63 FR 20362, April 24, Commission has left satellite radio COMMISSION 1998, in this proceeding. In the NPRM, vulnerable to interference from RF lights the Commission proposed changes to that may seek to operate at the ISM 47 CFR Part 18 part 18 to update the conducted miscellaneous out-of-band emission emission limits for RF lighting devices limit in the future. Finally, the Satellite [ET Docket No. 98–42; FCC 04–263] operating in the 2.2–2.8 MHz band. The Radio Licensees urge the Commission to Commission also proposed more clarify that RF lights are prohibited from RF Lighting Devices stringent out-of-band radiated emission operating in the 2.45 GHz band, unless AGENCY: Federal Communications limits for consumer and non-consumer and until the Commission concludes a Commission. RF lights in the 2400–2500 MHz (2.45 new rulemaking in which a specific out- GHz) bands. In addition, because the ACTION: Final rule. of-band limit is adopted for 2.45 GHz RF existing regulations for RF lighting lights. To the extent that this relief is SUMMARY: This document addresses a devices do not specifically include any not given, the Satellite Radio Licensees Joint Petition for Clarification (Joint radiated emission limits for RF lights request that the Commission provide Petition) filed by XM Radio Inc. and operating at frequencies above 1000 potentially affected parties, including Sirius Satellite Radio Inc. (the Satellite MHz, the Commission proposed the Satellite Radio Licensees, an ample Radio Licensees) requesting clarification radiated emission limits for such notice and opportunity to comment. of the Commission’s Order in this products that are identical to the limits 7. We disagree with the Satellite proceeding. The Commission already in place for digital devices. Radio Licensees’ argument that by determined that there was no need to 3. On June 9, 1999, the Commission terminating the proceeding by the define out-of-band limits for radio adopted a First Report and Order, 64 FR Order, the Commission has left satellite frequency (RF) lights in the 2.45 GHz 37417, July 12, 1999, in this proceeding radio vulnerable to interference from RF band. We dismissed the Joint Petition that adopted less stringent conducted lights operating in the 2.45 GHz band. and reject the Satellite Radio Licensees’ emission limits for RF lighting devices There is no reason to believe that future request to prohibit the operation of RF operating in the 2.51–3.0 MHz band, but RF lights designed by Fusion or any lights in the 2.45 GHz band. We further deferred action on changes to the rules other party would be produced using affirm our decision to terminate the for RF lighting devices operating in the the same unsuccessful design, the same proceeding without prejudice to its 2.45 GHz band to a future date. operating frequencies or exhibit the substantive merits. Subsequently, Fusion informed the same characteristics as evaluated in the Commission that it is no longer Satellite Radio Licensees’ Supplemental FOR FURTHER INFORMATION CONTACT: Anh pursuing development of RF lights that Comments. Furthermore, Fusion no Wride, Office of Engineering and operate in the 2.45 GHz band. longer develops or manufactures RF Technology, (202) 418–0577, e-mail: 4. On May 27, 2003, the Commission lights in the 2.45 GHz band and we are [email protected], TTY (202) 418– adopted an Order, 68 FR 37112, June 23, not aware that any other party is 2989. 2003, terminating this proceeding as it developing RF lights that would operate SUPPLEMENTARY INFORMATION: This is a found that with the passage of time, the in this band. summary of the Commission’s Order, ET record of the proceeding had become 8. We note that RF lights are already Docket No. 98–42, FCC 04–263, adopted outdated and, furthermore, that Fusion, covered under our existing Part 18 rules November 5, 2004 and released the only party that expressed interest in and compliant equipment can be November 9, 2004. The full text of this producing RF lights in the 2.45 GHz authorized according to our equipment document is available on the band, had ceased operations in this area. authorization procedures. Although Commission’s Internet site at http:// In the Order, the Commission traditional low-frequency RF lights are www.fcc.gov. It is also available for concluded that there did not appear to treated as a distinct class in Part 18,

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microwave RF lights are subject to that the requested prohibition is above mentioned proceeding Is existing out-of-band radiated emission overarching and is not warranted based terminated without prejudice to its limits applicable to microwave ovens on the circumstances. If there is substantive merits, and the Joint and other miscellaneous ISM equipment evidence that any entity will seek to Petition for Clarification filed by the operating in the 2400–2500 MHz band. operate RF lights in the 2.45 GHz band Satellite Radio Licensees Is dismissed. Moreover, we emphasize that RF lights, and cause harmful interference to like all part 18 equipment, must operate satellite radio receivers as a Congressional Review Act under the non-interference restriction of consequence, and our existing limits 12. The Commission will not send a prove inadequate, we will at that time § 18.111(b) of our rules. Under the rules, copy of this Order pursuant to the take appropriate action. the operator of such equipment must Congressional Review Act, see 5 U.S.C. promptly take all necessary steps to 10. Based on the foregoing, we affirm our decision to terminate the proceeding 801(a)(1)(A), because we are not eliminate harmful interference to any adopting any rules at this time. We are authorized radio service, even if the without prejudice to its substantive merits, and hereby dismiss the Joint affirming our decision to terminate the equipment otherwise complies with the proceeding without prejudice to its rules. Hence we find that there is Petition for Clarification from the Satellite Radio Licensees. substantive merits, and hereby dismiss adequate recourse against potentially the Joint Petition for Clarification from harmful interference to satellite radio Ordering Clause the Satellite Radio Licensees. receivers under the provisions of this 11. Pursuant to the authority Federal Communications Commission. section. contained in Sections 4(i), 301, 302, 9. We therefore decline to provide the 303(e), 303(f), 303(g) and 303(r) of the William F. Caton, requested relief from the Satellite Radio Communications Act of 1934, as Deputy Secretary. Licensees to prohibit operation of all RF amended, 47 U.S.C. Sections 154(i), 301, [FR Doc. 04–26829 Filed 12–6–04; 8:45 am] lights in the 2.45 GHz band, as we find 302, 303(e), 303(f), 303(g) and 303(r), the BILLING CODE 6712–01–P

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Proposed Rules Federal Register Vol. 69, No. 234

Tuesday, December 7, 2004

This section of the FEDERAL REGISTER • Mail: Docket Management Facility, your comments. We specifically invite contains notices to the public of the proposed U.S. Department of Transportation, 400 comments on the overall regulatory, issuance of rules and regulations. The Seventh Street SW., Nassif Building, economic, environmental, and energy purpose of these notices is to give interested room PL–401, Washington, DC 20590. aspects of the proposed AD. We will persons an opportunity to participate in the • By fax: (202) 493–2251. consider all comments submitted by the rule making prior to the adoption of the final • rules. Hand Delivery: Room PL–401 on closing date and may amend the the plaza level of the Nassif Building, proposed AD in light of those 400 Seventh Street SW., Washington, comments. DEPARTMENT OF TRANSPORTATION DC, between 9 a.m. and 5 p.m., Monday We will post all comments we through Friday, except Federal holidays. receive, without change, to http:// Federal Aviation Administration For service information identified in dms.dot.gov, including any personal this proposed AD, contact British information you provide. We will also 14 CFR Part 39 Aerospace Regional Aircraft American post a report summarizing each Support, 13850 Mclearen Road, substantive verbal contact with FAA [Docket No. FAA–2004–19765; Directorate personnel concerning this proposed AD. Identifier 2002–NM–72–AD] Herndon, Virginia 20171. You can examine the contents of this Using the search function of our docket RIN 2120–AA64 AD docket on the Internet at http:// website, anyone can find and read the dms.dot.gov, or in person at the Docket comments in any of our dockets, Airworthiness Directives; BAE Management Facility, U.S. Department including the name of the individual Systems (Operations) Limited Model of Transportation, 400 Seventh Street who sent the comment (or signed the BAe 146 Series Airplanes and Model SW., room PL–401, on the plaza level of comment on behalf of an association, Avro 146–RJ Series Airplanes the Nassif Building, Washington, DC. business, labor union, etc. You can AGENCY: Federal Aviation This docket number is FAA–2004– review the DOT’s complete Privacy Act Administration (FAA), DOT. 19765; the directorate identifier for this Statement in the Federal Register published on April 11, 2000 (65 FR ACTION: Notice of proposed rulemaking docket is 2002–NM–72–AD. 19477–78), or you can visit http:// (NPRM). FOR FURTHER INFORMATION CONTACT: Technical information: Todd dms.dot.gov. We are reviewing the writing style we SUMMARY: The FAA proposes to adopt a Thompson, Aerospace Engineer, currently use in regulatory documents. new airworthiness directive (AD) for International Branch, ANM–116, FAA, We are interested in your comments on certain BAE Systems (Operations) Transport Airplane Directorate, 1601 whether the style of this document is Limited Model BAe 146 series airplanes Lind Avenue, SW., Renton, Washington clear, and your suggestions to improve and Model Avro 146–RJ series airplanes. 98055–4056; telephone (425) 227–1175; This proposed AD would require the clarity of our communications that fax (425) 227–1149. affect you. You can get more repetitive inspections to detect Plain language information: Marcia discrepancies of the fuselage skin and information about plain language at Walters, [email protected]. http://www.faa.gov/language and http:// reinforcing plates along the wing to SUPPLEMENTARY INFORMATION: fuselage fairing access panels on the www.plainlanguage.gov. left- and right-hand sides of the Docket Management System (DMS) Examining the Docket airplane, and repair if necessary. This The FAA has implemented new You can examine the AD docket on proposed AD also would provide for an procedures for maintaining AD dockets the Internet at http://dms.dot.gov, or in optional terminating action for the electronically. As of May 17, 2004, new person at the Docket Management repetitive inspections. This proposed AD actions are posted on DMS and Facility office between 9 a.m. and 5 AD is prompted by a report of chafing assigned a docket number. We track p.m., Monday through Friday, except on the wing to fuselage fairing panels. each action and assign a corresponding Federal holidays. The Docket We are proposing this AD to prevent directorate identifier. The DMS AD Management Facility office (telephone chafing of the fuselage skin and docket number is in the form ‘‘Docket (800) 647–5227) is located on the plaza reinforcing plates, which could lead to No. FAA–2004–99999.’’ The Transport level of the Nassif Building at the DOT reduced structural integrity of the Airplane Directorate identifier is in the street address stated in the ADDRESSES airplane’s fuselage. form ‘‘Directorate Identifier 2004–NM– section. Comments will be available in DATES: We must receive comments on 999–AD.’’ Each DMS AD docket also the AD docket shortly after the DMS this proposed AD by January 6, 2005. lists the directorate identifier (‘‘Old receives them. ADDRESSES: Use one of the following Docket Number’’) as a cross-reference Discussion addresses to submit comments on this for searching purposes. proposed AD. The Civil Aviation Authority (CAA), Comments Invited • DOT Docket web site: Go to http:/ which is the airworthiness authority for /dms.dot.gov and follow the instructions We invite you to submit any relevant the United Kingdom, notified us that an for sending your comments written data, views, or arguments unsafe condition may exist on certain electronically. regarding this proposed AD. Send your BAE Systems (Operations) Limited • Government-wide rulemaking web comments to an address listed under Model BAe 146 series airplanes and site: Go to http://www.regulations.gov ADDRESSES. Include ‘‘Docket No. FAA– Model Avro 146–RJ series airplanes. and follow the instructions for sending 2004–19765; Directorate Identifier The CAA advises that it has received a your comments electronically. 2002–NM–72–AD’’ at the beginning of report of chafing of the fuselage skin

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and reinforcing plates along the wing to information, and determined that we Authority for This Rulemaking fuselage fairing access panels, both left- need to issue an AD for products of this The FAA’s authority to issue rules and right-hand sides. This condition, if type design that are certificated for regarding aviation safety is found in not corrected, could result in chafing of operation in the United States. Title 49 of the United States Code. Therefore, we are proposing this AD, the fuselage skin and reinforcing plates, Subtitle I, Section 106, describes the which would require accomplishing the which could lead to reduced structural authority of the FAA Administrator. actions specified in BAE Systems integrity of the airplane’s fuselage. Subtitle VII, Aviation Programs (Operations) Limited Inspection Service describes in more detail the scope of the Relevant Service Information Bulletin ISB.53–162 described agency’s authority. BAE Systems (Operations) Limited previously, except as discussed under This rulemaking is promulgated has issued Inspection Service Bulletin ‘‘Differences Between the Proposed AD under the authority described in ISB.53–162, dated September 12, 2001. and the Service Bulletins.’’ The Subtitle VII, Part A, Subpart III, Section The inspection service bulletin proposed AD also would provide an 44701, ‘‘General requirements.’’ Under describes the following procedures: optional terminating action that would that section, the FAA is charged with • Doing repetitive detailed end the repetitive inspection promoting safety flight of civil aircraft inspections to detect discrepancies (i.e., requirements. chafing outside the limits specified in in air commerce by prescribing the service bulletin, scoring, or Differences Between the Proposed AD regulations for practices, methods, and cracking) of the fuselage skin and and the Service Bulletins procedures the Administrator finds reinforcing plates along the wing to Operators should note that, although necessary for safety in air commerce. fuselage fairing access panels on the the Accomplishment Instructions of the This regulation is within the scope of left- and right-hand sides of the BAE Systems (Operations) Limited that authority because it addresses an airplane; Inspection Service Bulletin ISB.53–162 unsafe condition that is likely to exist or • Contacting the manufacturer for describe procedures for submitting an develop on products identified in this disposition of plate repairs; and inspection report, this proposed AD proposed AD. • Submitting an inspection report to would not require that action. We do Regulatory Findings the manufacturer. not need this information from We have determined that this BAE Systems (Operations) Limited operators. has also issued Modification Service The BAE Systems (Operations) proposed AD would not have federalism Bulletin SB.53–162–01698A, Revision 1, Limited Inspection Service Bulletin implications under Executive Order dated January 31, 2002. The ISB.53–162 specifies that you may 13132. This proposed AD would not modification service bulletin describes contact the manufacturer for have a substantial direct effect on the procedures for modifying the fuselage instructions on how to repair certain States, on the relationship between the skin at the wing-to-fuselage access conditions, but this proposed AD would national Government and the States, or panels, doing related investigative require you to repair those conditions on the distribution of power and actions, and doing corrective actions if using a method that we or the CAA (or responsibilities among the various necessary, which eliminates the need its delegated agent) approve. In light of levels of government. for the repetitive inspections specified the type of repair that would be required For the reasons discussed above, I in BAE Systems (Operations) Limited to address the unsafe condition, and certify that the proposed regulation: 1. Is not a ‘‘significant regulatory Inspection Service Bulletin ISB.53–162. consistent with existing bilateral action’’ under Executive Order 12866; The modification involves applying airworthiness agreements, we have 2. Is not a ‘‘significant rule’’ under the protective tape along the fuselage at the determined that, for this proposed AD, DOT Regulatory Policies and Procedures access panel seal contact area and to the a repair we or the CAA (or its delegated (44 FR 11034, February 26, 1979); and fuselage at the aft position. The related agent) approve would be acceptable for 3. Will not have a significant repetitive investigative actions involve compliance with this proposed AD. repetitively inspecting the protective economic impact, positive or negative, tape and sealant for damage and Clarification of Service Bulletin Actions on a substantial number of small entities restoring if necessary. Operators should note that the under the criteria of the Regulatory The CAA mandated BAE Systems Accomplishment Instructions of the Flexibility Act. (Operations) Limited Inspection Service Modification Service Bulletin SB.53– We prepared a regulatory evaluation Bulletin ISB.53–162 and issued British 162–01698A, Revision 1, dated January of the estimated costs to comply with airworthiness directive 002–09–2001 to 31, 2002, describes procedures for doing this proposed AD. See the ADDRESSES ensure the continued airworthiness of related repetitive investigative actions, section for a location to examine the these airplanes in the United Kingdom. and doing corrective actions if regulatory evaluation. necessary. The related repetitive FAA’s Determination and Requirements List of Subjects in 14 CFR Part 39 investigative actions involve inspecting of the Proposed AD Air transportation, Aircraft, Aviation the protective tape and sealant for safety, Safety. These airplane models are damage, and restoring if necessary. manufactured in the United Kingdom The Proposed Amendment and are type certificated for operation in Costs of Compliance the United States under the provisions This proposed AD would affect about Accordingly, under the authority of § 21.29 of the Federal Aviation 65 airplanes of U.S. registry. The delegated to me by the Administrator, Regulations (14 CFR 21.29) and the proposed inspection would take about 4 the FAA proposes to amend 14 CFR part applicable bilateral airworthiness work hours per airplane, at an average 39 as follows: agreement. Pursuant to this bilateral labor rate of $65 per work hour. Based PART 39—AIRWORTHINESS airworthiness agreement, the CAA has on these figures, the estimated cost of DIRECTIVES kept the FAA informed of the situation the proposed AD for U.S. operators is described above. We have examined the $16,900, or $260 per airplane, per 1. The authority citation for part 39 CAA’s findings, evaluated all pertinent inspection cycle. continues to read as follows:

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Authority: 49 U.S.C. 106(g), 40113, 44701. Corrective Action SUMMARY: The FAA proposes to adopt a new airworthiness directive (AD) for § 39.13 [Amended] (h) If any discrepancy is found during the detailed inspection required by paragraph (g) certain Bombardier Model CL–600– 2. The FAA amends § 39.13 by adding of this AD, before further flight, repair 2B19 (Regional Jet Series 100 and 440) the following new airworthiness according to a method approved by either the airplanes. This proposed AD would directive (AD): Manager, International Branch, ANM–116, require modification of the Auxiliary FAA, Transport Airplane Directorate; or the Power Unit (APU) cooling air exhaust. BAE Systems (Operations) Limited Civil Aviation Authority (CAA) (or its (Formerly British Aerospace Regional delegated agent). This proposed AD is prompted by Aircraft): Docket No. FAA–2004–19765; reports of incomplete drainage of the Directorate Identifier 2002–NM–72–AD. Optional Terminating Action and Follow-on APU enclosure. We are proposing this Inspections AD to prevent a negative pressure Comments Due Date (i) Modify the fuselage skin at the wing-to- condition from developing in the APU (a) The Federal Aviation Administration fuselage access panels, do the related enclosure when the APU is operating on must receive comments on this AD action by repetitive investigative action, and do the ground, which could create a January 6, 2005. applicable corrective actions by potential fire hazard if flammable liquid accomplishing all the actions in accordance Affected ADs with the Accomplishment Instructions of leakage occurs inside the APU enclosure (b) None. BAE Systems (Operations) Limited and cannot be drained overboard. Applicability Modification Service Bulletin SB.53–162– DATES: We must receive comments on 01698A, Revision 1, dated January 31, 2002. this proposed AD by January 6, 2005. (c) This AD applies to BAE Systems These actions terminate the repetitive (Operations) Limited Model BAe 146 series ADDRESSES: Use one of the following inspections required by paragraph (g) of this addresses to submit comments on this airplanes and Model Avro 146-RJ series AD. Repeat the related repetitive airplanes; certificated in any category; on proposed AD. investigative action (which involves • which modification HCM01037A has been inspecting the protective tape and sealant for DOT Docket Web site: Go to http:/ incorporated. damage) thereafter at intervals not to exceed /dms.dot.gov and follow the instructions Unsafe Condition 4,000 flight cycles. for sending your comments electronically. (d) This AD was prompted by a report of No Reporting • Government-wide rulemaking web chafing on the wing to fuselage fairing (j) Although the service bulletin referenced site: Go to http://www.regulations.gov panels. We are issuing this AD to prevent in this AD specifies to submit an inspection chafing of the fuselage skin and reinforcing and follow the instructions for sending report, this AD does not include that your comments electronically. plates, which could lead to reduced requirement. • structural integrity of the airplane’s fuselage. Mail: Docket Management Facility, Alternative Methods of Compliance U.S. Department of Transportation, 400 Compliance (AMOCs) Seventh Street SW., Nassif Building, (e) You are responsible for having the (k) The Manager, International Branch, room PL–401, Washington, DC 20590. actions required by this AD performed within ANM–116, has the authority to approve • By fax: (202) 493–2251. the compliance times specified, unless the AMOCs for this AD, if requested in • Hand Delivery: Room PL–401 on actions have already been done. accordance with the procedures found in 14 the plaza level of the Nassif Building, Service Bulletin CFR 39.19. 400 Seventh Street SW., Washington, (f) The term ‘‘service bulletin,’’ as used in Related Information DC, between 9 a.m. and 5 p.m., Monday this AD, means the Accomplishment (l) British airworthiness directive 002–09– through Friday, except Federal holidays. Instructions of BAE Systems (Operations) 2001 also addresses the subject of this AD. For service information identified in Limited Inspection Service Bulletin ISB.53– this proposed AD, contact Bombardier, 162, dated September 12, 2001. Issued in Renton, Washington, on November 26, 2004. Inc., Canadair, Aerospace Group, P.O. Box 6087, Station Centre-ville, Repetitive Detailed Inspections Ali Bahrami, Montreal, Quebec H3C 3G9, Canada. (g) Prior to the accumulation of 8,000 total Manager, Transport Airplane Directorate, flight cycles, or within 500 flight cycles after You can examine the contents of this Aircraft Certification Service. AD docket on the Internet at http:// the effective date of this AD, whichever [FR Doc. 04–26799 Filed 12–6–04; 8:45 am] occurs later, do a detailed inspection to dms.dot.gov, or at the Docket detect discrepancies (i.e., chafing outside the BILLING CODE 4910–13–P Management Facility, U.S. Department limits specified in the service bulletin, of Transportation, 400 Seventh Street scoring, or cracking) of the fuselage skin and SW., room PL–401, on the plaza level of DEPARTMENT OF TRANSPORTATION reinforcing plates along the wing to fuselage the Nassif Building, Washington, DC. fairing access panels on the left- and right- FOR FURTHER INFORMATION CONTACT: hand sides of the airplane, in accordance Federal Aviation Administration with the service bulletin. Repeat the detailed Technical information: James E. Delisio, inspection thereafter at intervals not to 14 CFR Part 39 Aerospace Engineer, Airframe and exceed 4,000 flight cycles, until the Propulsion Branch, ANE–171, FAA, terminating action specified in paragraph (i) [Docket No. FAA–2004–19761; Directorate New York Aircraft Certification Office, of this AD has been done. Identifier 2003–NM–167–AD] 1600 Stewart Avenue, suite 410, Note 1: For the purposes of this AD, a RIN 2120–AA64 Westbury, New York 11590; telephone detailed inspection is ‘‘an intensive (516) 228–7321; fax (516) 794–5531. examination of a specific item, installation, Airworthiness Directives; Bombardier Plain Language information: Marcia or assembly to detect damage, failure, or Model CL–600–2B19 (Regional Jet Walters, [email protected]. irregularity. Available lighting is normally Series 100 & 440) Airplanes supplemented with a direct source of good SUPPLEMENTARY INFORMATION: lighting at an intensity deemed appropriate. AGENCY: Federal Aviation Docket Management System (DMS) Inspection aids such as mirrors magnifying Administration (FAA), DOT. The FAA has implemented new lenses, etc. may be necessary. Surface ACTION: Notice of proposed rulemaking procedures for maintaining AD dockets cleaning and elaborate procedures may be (NPRM). required.’’ electronically. As of May 17, 2004, new

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AD actions are posted on DMS and street address stated in the ADDRESSES for products of this type design that are assigned a docket number. We track section. Comments will be available in certificated for operation in the United each action and assign a corresponding the AD docket shortly after the DMS States. directorate identifier. The DMS AD receives them. Therefore, we are proposing this AD, docket number is in the form ‘‘Docket which would require modification of Discussion No. FAA–2004–99999.’’ The Transport the APU cooling air exhaust. The Airplane Directorate identifier is in the Transport Canada Civil Aviation proposed AD would require you to use form ‘‘Directorate Identifier 2004-NM– (TCCA), which is the airworthiness the Bombardier service information 999-AD.’’ Each DMS AD docket also authority for Canada, notified us that an described previously to perform these lists the directorate identifier (‘‘Old unsafe condition may exist on certain actions. Docket Number’’) as a cross-reference Bombardier Model CL–600–2B19 Differences Between the Bombardier for searching purposes. (Regional Jet series 100 & 440) airplanes. TCCA advises that incomplete drainage Service Bulletin and This Proposed AD Comments Invited of the APU enclosure has been reported Although the Accomplishment We invite you to submit any written in service. Further investigation Instructions of the Bombardier service relevant data, views, or arguments revealed that negative pressure, which bulletin indicate to submit a comment regarding this proposed AD. Send your may contribute to the drainage problem, sheet and a compliance sheet, this comments to an address listed under could be created in the APU enclosure proposed AD does not require that ADDRESSES. Include ‘‘Docket No. FAA– when the APU is operating on the action. 2004–19761; Directorate Identifier ground. This condition, if not corrected, 2003–NM–167–AD’’ at the beginning of could create a potential fire hazard if Costs of Compliance your comments. We specifically invite flammable liquid leakage occurs inside This proposed AD would affect about comments on the overall regulatory, the APU enclosure and cannot be 120 airplanes of U.S. registry. The economic, environmental, and energy completely drained overboard. proposed actions would take about 10 aspects of the proposed AD. We will work hours per airplane, at an average consider all comments submitted by the Relevant Service Information labor rate of $65 per work hour. There closing date and may amend the Bombardier has issued Service would be no charge for parts that may proposed AD in light of those Bulletin S.B. 601R–49–015, including be required to perform the actions comments. Appendix A, dated November 6, 1998, required by this AD. Based on these We will post all comments we which describes procedures for figures, the estimated cost of the receive, without change, to http:// modification of the APU cooling air proposed AD for U.S. operators is dms.dot.gov, including any personal exhaust. This modification corrects the $78,000, or $650 per airplane. information you provide. We will also negative pressure problem and increases post a report summarizing each the volume of air entering the APU Authority for This Rulemaking substantive verbal contact with FAA enclosure. Accomplishing the actions The FAA’s authority to issue rules personnel concerning this proposed AD. specified in the service information is regarding aviation safety is found in Using the search function of our docket intended to adequately address the Title 49 of the United States Code. website, anyone can find and read the unsafe condition. TCCA mandated the Subtitle I, Section 106, describes the comments in any of our dockets, service information and issued authority of the FAA Administrator. including the name of the individual Canadian airworthiness directive CF– Subtitle VII, Aviation Programs who sent the comment (or signed the 2002–21, dated March 21, 2002, to describes in more detail the scope of the comment on behalf of an association, ensure the continued airworthiness of agency’s authority. business, labor union, etc.). You can these airplanes in Canada. This rulemaking is promulgated review the DOT’s complete Privacy Act Bombardier Service Bulletin S.B. under the authority described in Statement in the Federal Register 601R–49–015 refers to Avica Service Subtitle VII, Part A, Subpart III, Section published on April 11, 2000 (65 FR Bulletin 10S145–49–01, dated July 15, 44701, ‘‘General requirements.’’ Under 19477–78), or you can visit http:// 1998, and Canadair Kit Drawing that section, the FAA is charged with dms.dot.gov. K601R97150, Rev NC, as additional promoting safety flight of civil aircraft We are reviewing the writing style we sources of service information for doing in air commerce by prescribing currently use in regulatory documents. the modification. The Avica service regulations for practices, methods, and We are interested in your comments on bulletin and the Canadair Kit Drawing procedures the Administrator finds whether the style of this document is are included as Appendix A of the necessary for safety in air commerce. clear, and your suggestions to improve Bombardier service bulletin. This regulation is within the scope of the clarity of our communications that that authority because it addresses an FAA’s Determination and Requirements affect you. You can get more unsafe condition that is likely to exist or of the Proposed AD information about plain language at develop on products identified in this http://www.faa.gov/language and http:// This airplane model is manufactured proposed AD. www.plainlanguage.gov. in Canada and is type certificated for operation in the United States under the Regulatory Findings Examining the Docket provisions of § 21.29 of the Federal We have determined that this You can examine the AD docket on Aviation Regulations (14 CFR 21.29) proposed AD would not have federalism the Internet at http://dms.dot.gov, or in and the applicable bilateral implications under Executive Order person at the Docket Management airworthiness agreement. Pursuant to 13132. This proposed AD would not Facility office between 9 a.m. and 5 this bilateral airworthiness agreement, have a substantial direct effect on the p.m., Monday through Friday, except TCCA has kept the FAA informed of the States, on the relationship between the Federal holidays. The Docket situation described above. We have national Government and the States, or Management Facility office (telephone examined TCCA’s findings, evaluated on the distribution of power and (800) 647–5227) is located on the plaza all pertinent information, and responsibilities among the various level of the Nassif Building at the DOT determined that AD action is necessary levels of government.

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For the reasons discussed above, I the compliance times specified, unless the SUMMARY: The FAA proposes to adopt a certify that the proposed regulation: actions have already been done. new airworthiness directive (AD) for all 1. Is not a ‘‘significant regulatory Modify APU Cooling Air Exhaust Airbus Model A318, A319, A320, and action’’ under Executive Order 12866; A321 series airplanes. This proposed 2. Is not a ‘‘significant rule’’ under the (f) Within 2,000 flight hours after the effective date of the AD, or within 16 months AD would require an inspection of the DOT Regulatory Policies and Procedures after the effective date of this AD, whichever spoiler servo control for certain part (44 FR 11034, February 26, 1979); and occurs first: Modify the APU cooling air numbers and corrective action if 3. Will not have a significant exhaust by doing all of the actions in the necessary. This proposed AD is economic impact, positive or negative, Accomplishment Instructions of Bombardier prompted by a report of a broken piston on a substantial number of small entities Service Bulletin S.B. 601R–49–015, dated rod bearing of the spoiler servo control. under the criteria of the Regulatory November 6, 1998, except that submitting a We are proposing this AD to prevent Flexibility Act. comment sheet and a compliance sheet are breakage of the piston rod bearing, not required by this AD. We prepared a regulatory evaluation which could cause loss of the associated of the estimated costs to comply with Note 1: Bombardier Service Bulletin S.B. hydraulic system and spoiler extension, this proposed AD. See the ADDRESSES 601R–49–015, dated November 6, 1998, refers to Avica Service Bulletin 10S145–49– and could result in reduced section for a location to examine the controllability of the airplane. regulatory evaluation. 01, dated July 15, 1998, and Canadair Kit Drawing K601R97150, Rev NC, as additional DATES: We must receive comments on List of Subjects in 14 CFR Part 39 sources of service information for doing the this proposed AD by January 6, 2005. modification. The Avica service bulletin and Air transportation, Aircraft, Aviation ADDRESSES: Use one of the following the Canadair Kit Drawing are included as addresses to submit comments on this safety, Safety. Appendix A of the Bombardier service bulletin. proposed AD. The Proposed Amendment • DOT Docket web site: Go to Accordingly, under the authority Parts Installation http://dms.dot.gov and follow the delegated to me by the Administrator, (g) As of the effective date of this AD, no instructions for sending your comments the FAA proposes to amend 14 CFR part person may install an APU enclosure having electronically. 39 as follows: Canadair part number (P/N) 601R97150–13, • Government-wide rulemaking web or Avica P/N 15A104–101, on any airplane, site: Go to http://www.regulations.gov PART 39—AIRWORTHINESS unless the unit has been modified in and follow the instructions for sending DIRECTIVES accordance with paragraph (f) of this AD. your comments electronically. • 1. The authority citation for part 39 Alternative Methods of Compliance Mail: Docket Management Facility, continues to read as follows: (h) The Manager, New York Aircraft U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, Authority: 49 U.S.C. 106(g), 40113, 44701. Certification Office, has the authority to approve alternative methods of compliance room PL–401, Washington, DC 20590. • § 39.13 [Amended] for this AD if requested using the procedures By fax: (202) 493–2251. • Hand Delivery: Room PL–401 on 2. The Federal Aviation found in 14 CFR 39.19. the plaza level of the Nassif Building, Administration (FAA) amends § 39.13 Related Information 400 Seventh Street SW., Washington, by adding the following new (i) Transport Canada Civil Aviation DC, between 9 a.m. and 5 p.m., Monday airworthiness directive (AD): Canadian airworthiness directive CF–2002– through Friday, except Federal holidays. Bombardier, Inc. (Formerly Canadair): 21, dated March 21, 2002, also addresses the subject of this AD. For service information identified in Docket No. FAA–2004–19761; this proposed AD, contact Airbus, 1 Directorate Identifier 2003–NM–167–AD. Issued in Renton, Washington, on Rond Point Maurice Bellonte, 31707 Comments Due Date November 26, 2004. Blagnac Cedex, France. Ali Bahrami, (a) The FAA must receive comments on You can examine the contents of this this AD action by January 6, 2005. Manager, Transport Airplane Directorate, AD docket on the Internet at http:// Aircraft Certification Service. dms.dot.gov, or in person at the Docket Affected ADs [FR Doc. 04–26798 Filed 12–6–04; 8:45 am] Management Facility, U.S. Department (b) None. BILLING CODE 4910–13–P of Transportation, 400 Seventh Street Applicability SW., room PL–401, on the plaza level of the Nassif Building, Washington, DC. (c) This AD applies to Bombardier Model DEPARTMENT OF TRANSPORTATION CL–600–2B19 (Regional Jet Series 100 and This docket number is FAA–2004– 19762; the directorate identifier for this 440) airplanes, certificated in any category, as Federal Aviation Administration identified in Bombardier Service Bulletin docket is 2004–NM–168–AD. S.B. 601R–49–015, including Appendix A, 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: dated November 6, 1998. Technical information: Dan Rodina, Unsafe Condition [Docket No. FAA–2004–19762; Directorate Aerospace Engineer, International (d) This AD is prompted by reports of Identifier 2004–NM–168–AD] Branch, ANM–116, FAA, Transport incomplete drainage of the Auxiliary Power Airplane Directorate, 1601 Lind Unit (APU) enclosure. We are issuing this AD RIN 2120–AA64 Avenue, SW., Renton, Washington to prevent a negative pressure condition from 98055–4056; telephone (425) 227–2125; developing in the APU enclosure when the Airworthiness Directives; Airbus Model fax (425) 227–1149. APU is operating on the ground, which could A318, A319, A320, and A321 Series Plain language information: Marcia create a potential fire hazard if flammable Airplanes Walters, [email protected]. fluid leakage occurs inside the APU enclosure and cannot be drained overboard. AGENCY: Federal Aviation SUPPLEMENTARY INFORMATION: Administration (FAA), DOT. Compliance Docket Management System (DMS) ACTION: Notice of proposed rulemaking The FAA has implemented new (e) You are responsible for having the (NPRM). actions required by this AD performed within procedures for maintaining AD dockets

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electronically. As of May 17, 2004, new level of the Nassif Building at the DOT May 26, 2004, refer to Goodrich Service AD actions are posted on DMS and street address stated in the ADDRESSES Bulletin 31077–27–14, dated May 24, assigned a docket number. We track section. Comments will be available in 2004, as an additional source of service each action and assign a corresponding the AD docket shortly after the DMS information for modifying the spoiler directorate identifier. The DMS AD receives them. servo control. docket number is in the form ‘‘Docket No. FAA–2004–99999.’’ The Transport Discussion FAA’s Determination and Requirements Airplane Directorate identifier is in the The Direction Ge´ne´rale de l’Aviation of the Proposed AD form ‘‘Directorate Identifier 2004–NM– Civile (DGAC), which is the These airplane models are 999–AD.’’ Each DMS AD docket also airworthiness authority for France, manufactured in France and are type lists the directorate identifier (‘‘Old notified us that an unsafe condition may certificated for operation in the United Docket Number’’) as a cross-reference exist on all Airbus Model A318, A319, States under the provisions of §21.29 of for searching purposes. A320, and A321 series airplanes fitted the Federal Aviation Regulations (14 with GOODRICH spoiler actuators part CFR 21.29) and the applicable bilateral Comments Invited number (P/N) 31077–050, –060, –070, airworthiness agreement. Pursuant to We invite you to submit any relevant –110 or –112. The DGAC advises that an this bilateral airworthiness agreement, written data, views, or arguments incorrect manufacturing process the DGAC has kept the FAA informed regarding this proposed AD. Send your resulted in the seal groove radii of the of the situation described above. We comments to an address listed under piston rod bearing of the spoiler servo have examined the DGAC’s findings, ADDRESSES. Include ‘‘Docket No. FAA– control being smaller than the drawing evaluated all pertinent information, and 2004–19762; Directorate Identifier specification. This condition, if not determined that we need to issue an AD 2004–NM–168–AD’’ at the beginning of corrected, could result in reduced for products of this type design that are your comments. We specifically invite fatigue life of the piston rod bearing and certificated for operation in the United comments on the overall regulatory, consequent breakage, which could cause States. economic, environmental, and energy loss of the associated hydraulic system Therefore, we are proposing this AD, aspects of the proposed AD. We will and spoiler extension, and could result which would require accomplishing the consider all comments submitted by the in reduced controllability of the actions specified in the service closing date and may amend the airplane. information described previously, proposed AD in light of those except as discussed under ‘‘Differences comments. Relevant Service Information Between the Proposed AD and the We will post all comments we Airbus has issued Service Bulletin Service Bulletins.’’ receive, without change, to http:// A320–27–1158; and Service Bulletin dms.dot.gov, including any personal A320–27–1159; both including Differences Between the Proposed AD information you provide. We will also Appendices 01 and 02; both dated May and the Service Bulletins post a report summarizing each 26, 2004. The service bulletins describe Operators should note that Airbus substantive verbal contact with FAA procedures for inspecting the spoiler Service Bulletin A320–27–1158; and personnel concerning this proposed AD. servo control for part numbers 31077– Service Bulletin A320–27–1159; both Using the search function of our docket 050, –060, –070, –110, and –112, and dated May 26, 2004; specify to contact website, anyone can find and read the corrective action if necessary. The Goodrich if the part number of the servo comments in any of our dockets, corrective action includes replacing the control is missing. However, this including the name of the individual spoiler servo control with a new or proposed AD requires operators to who sent the comment (or signed the modified spoiler servo control. replace the spoiler servo control with a comment on behalf of an association, The inspections are to be done at the new or modified spoiler servo control if business, labor union, etc.). You can following positions: operators are unable to determine the review the DOT’s complete Privacy Act • For Model A318, A319, and A321 part number. Statement in the Federal Register series airplanes: Positions 1 through 5 Although the Accomplishment published on April 11, 2000 (65 FR • For Model A320 series airplanes on Instructions of Airbus Service Bulletins 19477–78), or you can visit http:// which Airbus modification 26335 and A320–27–1158 and A320–27–1159 dms.dot.gov. Airbus Service Bulletin A320–27–1115, describe procedures for reporting We are reviewing the writing style we dated October 27, 1997; and Revision certain information to the manufacturer, currently use in regulatory documents. 01, dated June 22, 1999; has not been this proposed AD would not require that We are interested in your comments on done: Positions 1, 2, and 3 action. whether the style of this document is • For Model A320 series airplanes on clear, and your suggestions to improve which Airbus modification 26335 or Clarification of Inspection Type the clarity of our communications that Airbus Service Bulletin A320–27–1115, Airbus Service Bulletins A320–27– affect you. You can get more dated October 27, 1997; or Revision 01, 1158 and A320–27–1159 specify to do a information about plain language at dated June 22, 1999; has been done: ‘‘visual inspection’’ to determine the http://www.faa.gov/language and http:// Positions 1 through 5 part number of the spoiler servo www.plainlanguage.gov. Accomplishing the actions specified controls. This proposed AD would in the service information is intended to require a ‘‘general visual inspection’’ for Examining the Docket adequately address the unsafe these actions. We have included the You can examine the AD docket on condition. The DGAC mandated the definition for a general visual inspection the Internet at http://dms.dot.gov, or in service information and issued French in a note in this proposed AD. person at the Docket Management airworthiness directive F–2004–122, Facility office between 9 a.m. and 5 dated July 21, 2004, to ensure the Differences Between the Proposed AD p.m., Monday through Friday, except continued airworthiness of these and French Airworthiness Directive Federal holidays. The Docket airplanes in France. French airworthiness directive F– Management Facility office (telephone Airbus Service Bulletins A320–27– 2004–122, dated July 21, 2004, has an (800) 647–5227) is located on the plaza 1158 and A320–27–1159, both dated effectivity of ‘‘AIRBUS A318, A319,

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A320 and A321 aircraft, all certified Clarification of Actions in Proposed AD Although the Accomplishment models, all serials numbers, fitted with and the Service Bulletins Instructions of Airbus Service Bulletin GOODRICH spoiler actuators P/N A320–27–1159 do not specify 31077–050, –060, –070, –110 or –112.’’ Although the Accomplishment procedures for Model A318 and A319 However, because spoiler actuators are Instructions of Airbus Service Bulletin series airplanes, those models are interchangeable on Airbus Model A318, A320–27–1158 do not specify specified in the Reason/Description/ A319, A320, and A321 series airplanes, procedures for Model A318 and A319 Operational Consequences section of the airplanes not fitted with the spoiler series airplanes, those models are service bulletin, which recommends actuators P/N 31077–050, –060, –070, specified in the Reason/Description/ inspecting position 1 for those models. –110 or ‘‘112 may have a spoiler Operational Consequences section of the Those models are also specified in the actuator P/N 31077–050, –060, –070, service bulletin, which recommends note within the Effectivity, section 1.A., –110 or ‘‘112 installed in the future by inspecting positions 2, 3, 4, and 5 for of the service bulletin. This proposed AD would require inspections for Model operators during normal maintenance. those models. Those models are also A318 and A319 series airplanes at Therefore, the applicability of this specified in the note within the Effectivity, section 1.A., of the service position 1 and corrective actions if proposed AD includes all Airbus Model necessary. A318, A319, A320, and A321 series bulletin. This proposed AD would airplanes. Both the proposed AD and require inspections for Model A318 and Costs of Compliance A319 series airplanes at positions 2, 3, French airworthiness directive require The following table provides the 4, and 5; and corrective actions if an inspection for the part number of the estimated costs for U.S. operators to necessary. spoiler actuator (spoiler servo control). comply with this proposed AD.

ESTIMATED COSTS

Number of Action Work hours Average labor Cost per air- U.S.-registered Fleet cost rate per hour plane airplanes

Inspection ...... 3–5 $65 $195–$325 648 $126,360–$210,600

Authority for this Rulemaking 1. Is not a ‘‘significant regulatory Comments Due Date action’’ under Executive Order 12866; (a) The Federal Aviation Administration The FAA’s authority to issue rules 2. Is not a ‘‘significant rule’’ under the must receive comments on this AD action by regarding aviation safety is found in DOT Regulatory Policies and Procedures January 6, 2005. Title 49 of the United States Code. (44 FR 11034, February 26, 1979); and Affected ADs Subtitle I, Section 106 describes the 3. Will not have a significant authority of the FAA Administrator. economic impact, positive or negative, (b) None. Subtitle VII, Aviation Programs, on a substantial number of small entities Applicability describes in more detail the scope of the under the criteria of the Regulatory (c) This AD applies to all Airbus Model agency’s authority. Flexibility Act. A318, A319, A320, and A321 series This rulemaking is promulgated We prepared a regulatory evaluation airplanes, certificated in any category. under the authority described in of the estimated costs to comply with Unsafe Condition Subtitle VII, Part A, Subpart III, Section this proposed AD. See the ADDRESSES (d) This AD was prompted by a report of 44701, ‘‘General requirements.’’ Under section for a location to examine the a broken piston rod bearing of the spoiler that section, the FAA is charged with regulatory evaluation. servo control. We are issuing this AD to promoting safe flight of civil aircraft in List of Subjects in 14 CFR Part 39 prevent breakage of the piston rod bearing, air commerce by prescribing regulations which could cause loss of the associated for practices, methods, and procedures Air transportation, Aircraft, Aviation hydraulic system and spoiler extension, and the Administrator finds necessary for safety, Safety. could result in reduced controllability of the airplane. safety in air commerce. This regulation The Proposed Amendment is within the scope of that authority Compliance because it addresses an unsafe condition Accordingly, under the authority delegated to me by the Administrator, (e) You are responsible for having the that is likely to exist or develop on actions required by this AD performed within products identified in this proposed AD. the FAA proposes to amend 14 CFR part the compliance times specified, unless the 39 as follows: actions have already been done. Regulatory Findings PART 39—AIRWORTHINESS Phase 1 Inspection We have determined that this DIRECTIVES (f) Within 12 months after the effective proposed AD would not have federalism date of this AD, do a general visual implications under Executive Order 1. The authority citation for part 39 inspection for the part number of the spoiler 13132. This proposed AD would not continues to read as follows: servo control at the applicable locations have a substantial direct effect on the Authority: 49 U.S.C. 106(g), 40113, 44701. specified in Table 1 of this AD, in accordance States, on the relationship between the with Airbus Service Bulletin A320–27–1158, national Government and the States, or § 39.13 [Amended] including Appendices 01 and 02, dated May on the distribution of power and 2. The FAA amends § 39.13 by adding 26, 2004. responsibilities among the various the following new airworthiness Note 1: For the purposes of this AD, a general visual inspection is: ‘‘A visual levels of government. directive (AD): examination of an interior or exterior area, For the reasons discussed above, I Airbus: Docket No. FAA–2004–19762; installation or assembly to detect obvious certify that the proposed regulation: Directorate Identifier 2004–NM–168–AD. damage, failure or irregularity. This level of

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inspection is made from within touching of inspection is made under normal available or doors. Stands, ladders or platforms may be distance unless otherwise specified. A mirror lighting conditions such as daylight, hangar required to gain proximity to the area being may be necessary to ensure visual access to lighting, flashlight or droplight and may checked.’’ all surfaces in the inspection area. This level require removal or opening of access panels

TABLE 1.—PHASE 1 SPOILER SERVO CONTROL INSPECTION

For Airbus model— Inspect spoiler servo controls at—

A318 and A319 series airplanes ...... Positions 2, 3, 4, and 5. A320 series airplanes ...... Position 2. A321 series airplanes ...... Positions 2, 3, and 4.

Phase 2 Inspection inspection for the part number of the spoiler with Airbus Service Bulletin A320–27–1159, (g) Within 30 months after the effective servo control at the applicable locations including Appendix 01 and 02, dated May date of this AD, do a general visual specified in Table 2 of this AD, in accordance 26, 2004.

TABLE 2.—PHASE 2 SPOILER SERVO CONTROL INSPECTION

For Airbus model— Inspect spoiler servo controls at—

A318 and A319 series airplanes ...... Position 1. A320 series airplanes on which Airbus modification 26335 and Airbus Service Bulletin A320– Positions 1 and 3. 27–1115, dated October 27, 1997; and Revision 01, dated June 22, 1999; has not been done. A320 series airplanes on which Airbus modification 26335 or Airbus Service Bulletin A320–27– Positions 1, 3, 4, and 5. 1115, dated October 27, 1997; or Revision 01, dated June 22, 1999; has been done. A321 series airplanes ...... Positions 1 and 5.

Corrective Action Related Information replacing any fractured/cracked link; (h) If, during any inspection specified in (l) French airworthiness directive F–2004– and doing applicable related paragraph (f) or (g) of this AD, part number 122, dated July 21, 2004, also addresses the investigative and corrective actions, if (P/N) 31077–050, –060, –070, –110, or –112 subject of this AD. necessary. This proposed AD is is found or if unable to determine the P/N, Issued in Renton, Washington, on prompted by reports indicating that the before further flight, replace the spoiler servo November 26, 2004. links of the aileron PCU have failed. We control with a new or modified spoiler servo are proposing this AD to prevent failure control, in accordance with Airbus Service Ali Bahrami, Bulletin A320–27–1158; or Airbus Service Manager, Transport Airplane Directorate, of both links of the aileron PCU, which Bulletin A320–27–1159; both including Aircraft Certification Service. could result in reduced lateral control of Appendices 01 and 02; both dated May 26, [FR Doc. 04–26797 Filed 12–6–04; 8:45 am] the airplane. 2004; as applicable. BILLING CODE 4910–13–P DATES: We must receive comments on Note 2: Airbus Service Bulletins A320–27– this proposed AD by January 6, 2005. 1158 and A320–27–1159 refer to Goodrich ADDRESSES: Use one of the following Service Bulletin 31077–27–14, dated May 24, DEPARTMENT OF TRANSPORTATION 2004, as an additional source of service addresses to submit comments on this information for modifying the spoiler servo Federal Aviation Administration proposed AD. control. • DOT Docket web site: Go to http:/ 14 CFR Part 39 /dms.dot.gov and follow the instructions Reporting Not Required for sending your comments (i) Although Airbus Service Bulletins [Docket No. FAA–2004–19763; Directorate electronically. A320–27–1158 and A320–27–1159 specify to Identifier 2004–NM–187–AD] • Government-wide rulemaking web submit certain information to the manufacturer, this AD does not include that RIN 2120–AA64 site: Go to http://www.regulations.gov requirement. and follow the instructions for sending Airworthiness Directives; Bombardier your comments electronically. Parts Installation Model CL–600–2B19 (Regional Jet • Mail: Docket Management Facility, (j) As of the effective date of this AD, no Series 100 & 440) Airplanes U.S. Department of Transportation, 400 person may install a spoiler servo control, P/ Seventh Street SW., Nassif Building, N 31077–050, –060, –070, –110, or –112, on AGENCY: Federal Aviation Administration (FAA), DOT. room PL–401, Washington, DC 20590. any airplane, unless it has been modified • according to Airbus Service Bulletin A320– By fax: (202) 493–2251. ACTION: Notice of proposed rulemaking • 27–1158; or Airbus Service Bulletin A320– (NPRM). Hand Delivery: Room PL–401 on 27–1159; both including Appendices 01 and the plaza level of the Nassif Building, 02; both dated May 26, 2004. SUMMARY: The FAA proposes to adopt a 400 Seventh Street SW., Washington, Alternative Methods of Compliance new airworthiness directive (AD) for DC, between 9 a.m. and 5 p.m., Monday (AMOCs) certain Bombardier Model CL–600– through Friday, except Federal holidays. (k) The Manager, International Branch, 2B19 (Regional Jet Series 100 & 440) For service information identified in ANM–116, Transport Airplane Directorate, airplanes. This proposed AD would this proposed AD, contact Bombardier, FAA, has the authority to approve AMOCs require doing repetitive inspections for Inc., Canadair, Aerospace Group, P.O. for this AD, if requested in accordance with fractures and cracks of the links of the Box 6087, Station Centre-ville, the procedures found in 14 CFR 39.19. aileron power control unit (PCU); Montreal, Quebec H3C 3G9, Canada.

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You can examine the contents of this business, labor union, etc.). You can contacting the airplane manufacturer if AD docket on the Internet at http:// review the DOT’s complete Privacy Act a crack is found. dms.dot.gov, or in person at the Docket Statement in the Federal Register The service bulletin also describes Management Facility, U.S. Department published on April 11, 2000 (65 FR procedures for submitting inspection of Transportation, 400 Seventh Street 19477–78), or you can visit http:// findings and other information to the SW., room PL–401, on the plaza level of dms.dot.gov. airplane manufacturer. the Nassif Building, Washington, DC. We are reviewing the writing style we TCAA mandated the service This docket number is FAA–2004– currently use in regulatory documents. information and issued Canadian 19763; the directorate identifier for this We are interested in your comments on airworthiness directive CF–2004–13, docket is 2004–NM–187–AD. whether the style of this document is dated July 20, 2004, to ensure the FOR FURTHER INFORMATION CONTACT: clear, and your suggestions to improve continued airworthiness of these Technical information: Dan Parrillo, the clarity of our communications that airplanes in Canada. Aerospace Engineer, Systems and Flight affect you. You can get more FAA’s Determination and Requirements Test Branch, ANE–172, FAA, New York information about plain language at of the Proposed AD Aircraft Certification Office, 1600 http://www.faa.gov/language and http:// This airplane model is manufactured Stewart Avenue, Westbury, suite 410, www.plainlanguage.gov. in Canada and is type certificated for New York 11590; telephone (516) 228– Examining the Docket operation in the United States under the 7305; fax (516) 794–5531. You can examine the AD docket on provisions of § 21.29 of the Federal Plain language information: Marcia the Internet at http://dms.dot.gov, or in Aviation Regulations (14 CFR 21.29) Walters, [email protected]. person at the Docket Management and the applicable bilateral SUPPLEMENTARY INFORMATION: Facility office between 9 a.m. and 5 airworthiness agreement. Pursuant to Docket Management System (DMS) p.m., Monday through Friday, except this bilateral airworthiness agreement, Federal holidays. The Docket TCCA has kept the FAA informed of the The FAA has implemented new Management Facility office (telephone situation described above. We have procedures for maintaining AD dockets (800) 647–5227) is located on the plaza examined TCCA’s findings, evaluated electronically. As of May 17, 2004, new level of the Nassif Building at the DOT all pertinent information, and AD actions are posted on DMS and street address stated in the ADDRESSES determined that we need to issue an AD assigned a docket number. We track section. Comments will be available in for products of this type design that are each action and assign a corresponding the AD docket shortly after the DMS certificated for operation in the United directorate identifier. The DMS AD receives them. States. docket number is in the form ‘‘Docket Therefore, we are proposing this AD, No. FAA–2004–99999.’’ The Transport Discussion which would require accomplishing the Airplane Directorate identifier is in the Transport Canada Civil Aviation actions specified in the service form ‘‘Directorate Identifier 2004–NM– (TCCA), which is the airworthiness information described previously, 999–AD.’’ Each DMS AD docket also authority for Canada, notified us that an except as discussed under ‘‘Differences lists the directorate identifier (‘‘Old unsafe condition may exist on certain Between the AD and Service Bulletin.’’ Docket Number’’) as a cross-reference Bombardier Model CL–600–2B19 Differences Between Proposed AD and for searching purposes. (Regional Jet Series 100 & 440) Service Bulletin Comments Invited airplanes. TCCA advises that it has received reports indicating that the links The service bulletin specifies that you We invite you to submit any relevant of the aileron power control unit (PCU) may contact the manufacturer for written data, views, or arguments have failed on several in-service disposition of any cracked aileron lug, regarding this proposed AD. Send your airplanes. Failure of one link is but this proposed AD would require you comments to an address listed under considered to be a dormant failure. to disposition and replace any cracked ADDRESSES. Include ‘‘Docket No. FAA– Failure of both links, if not corrected, aileron lug using a method that we or 2004–19763; Directorate Identifier could result in reduced lateral control of TCCA (or its delegated agent) approve. 2004–NM–187–AD’’ at the beginning of the airplane. In light of the type of replacement that your comments. We specifically invite would be required to address the unsafe comments on the overall regulatory, Relevant Service Information condition, and consistent with existing economic, environmental, and energy Bombardier has issued Alert Service bilateral airworthiness agreements, we aspects of the proposed AD. We will Bulletin A601R–27–130, Revision ‘‘B,’’ have determined that, for this proposed consider all comments submitted by the including Appendices A and B, dated AD, a replacement we or TCCA approve closing date and may amend the May 11, 2004. The service bulletin would be acceptable for compliance proposed AD in light of those describes procedures for doing with this proposed AD. comments. repetitive detailed inspections for Operators should note that, although We will post all comments we fractures and cracks of the links of the the Accomplishment Instructions of the receive, without change, to http:// aileron PCU; replacing any fractured/ referenced service bulletin describe dms.dot.gov, including any personal cracked link; and doing applicable procedures for submitting a comment information you provide. We will also related investigative and corrective sheet related to service bulletin quality post a report summarizing each actions, if necessary. The related and a sheet recording compliance with substantive verbal contact with FAA investigative/corrective actions include: the service bulletin, this proposed AD personnel concerning this proposed AD. • Recording the torque value of the would not require those actions. We do Using the search function of our docket forward and aft attachment bolts for not need this information from website, anyone can find and read the both links of the applicable aileron PCU; operators. comments in any of our dockets, • Checking for mismatch between the including the name of the individual link and output fork of aileron PCU; and Interim Action who sent the comment (or signed the • Doing an eddy current inspection of This is considered to be interim comment on behalf of an association, the lugs of the aileron PCU, and action until final action is identified, at

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which time we may consider further Comments Due Date Acceptable Revisions of the Referenced rulemaking. (a) The Federal Aviation Administration Service Bulletin must receive comments on this AD action by (i) Actions specified in paragraphs (f) and Costs of Compliance January 6, 2005. (g) of this AD done before the effective date of this AD in accordance with Bombardier This proposed AD would affect about Affected ADs Alert Service Bulletin A601R–27–130, 697 airplanes of U.S. registry. The (b) None. Revision ‘‘A,’’ including Appendices A and proposed inspection would take about 1 Applicability B, dated December 22, 2003; are acceptable work hour per airplane, at an average for compliance with the corresponding labor rate of $65 per work hour. Based (c) This AD applies to Bombardier Model requirements of paragraphs (f) and (g) of this on these figures, the estimated cost of CL–600–2B19 (Regional Jet Series 100 & 440) AD. the proposed AD for U.S. operators is airplanes, serial numbers 7003 and (j) Accomplishment of the initial subsequent; certificated in any category. $45,305, or $65 per airplane, per inspection of the links of the aileron PCU, inspection cycle. Unsafe Condition and replacement if necessary, before the effective date of this AD in accordance with Regulatory Findings (d) This AD was prompted by reports Bombardier Alert Service Bulletin A601R– indicating that the links of the aileron power 27–130, including Appendices A and B, We have determined that this control unit (PCU) have failed. We are dated November 13, 2003, is acceptable for proposed AD would not have federalism issuing this AD to prevent failure of both compliance with the corresponding links of the aileron PCU, which could result requirements of paragraphs (f) and (g) of this implications under Executive Order in reduced lateral control of the airplane. 13132. This proposed AD would not AD; except as provided by paragraph (k) of Compliance this AD. have a substantial direct effect on the (k) Airplanes on which a fractured or States, on the relationship between the (e) You are responsible for having the cracked link of the aileron PCU was found national Government and the States, or actions required by this AD performed within that were not subject to an NDT inspection on the distribution of power and the compliance times specified, unless the of the aileron lugs (i.e., related investigative responsibilities among the various actions have already been done. action required by paragraph (h) of this AD) levels of government. Repetitive Inspections before the effective date of this AD must do an NDT inspection of the applicable lugs in (f) Before the accumulation of 2,000 total For the reasons discussed above, I accordance with paragraph (g) of this AD at flight hours, or within 550 flight hours after certify that the proposed regulation: the next repetitive detailed inspection of the the effective date of this AD, whichever link of the aileron PCU required by this AD. 1. Is not a ‘‘significant regulatory occurs later, do a detailed inspection for action’’ under Executive Order 12866; fractures and cracks of the links of the aileron Reporting 2. Is not a ‘‘significant rule’’ under the PCU, in accordance with Part A of the (l) Submit a report of the findings (both DOT Regulatory Policies and Procedures Accomplishment Instructions of Bombardier positive and negative) of the initial (44 FR 11034, February 26, 1979); and Alert Service Bulletin A601R–27–130, inspection required by paragraph (f) of this Revision ‘‘B,’’ including Appendices A and 3. Will not have a significant AD and any associated fractured or cracked B, dated May 11, 2004. Repeat the detailed link to Bombardier Aerospace Inc., c/o In- economic impact, positive or negative, inspection thereafter at intervals not to on a substantial number of small entities Service Engineering, 3rd floor, Dept. 508, 400 exceed 1,000 flight hours. Cote Vertu Road West, Dorval, QC, Canada under the criteria of the Regulatory Note 1: For the purposes of this AD, a H4S 1Y9, at the applicable time specified in Flexibility Act. detailed inspection is ‘‘an intensive paragraph (l)(1) or (l)(2) of this AD. The We prepared a regulatory evaluation examination of a specific item, installation, report must be done in accordance with of the estimated costs to comply with or assembly to detect damage, failure, or Appendices A and B of Bombardier Alert irregularity. Available lighting is normally ADDRESSES Service Bulletin A601R–27–130, Revision this proposed AD. See the supplemented with a direct source of good section for a location to examine the ‘‘B,’’ dated May 11, 20004. Under the lighting at an intensity deemed appropriate. provisions of the Paperwork Reduction Act of regulatory evaluation. Inspection aids such as mirrors magnifying 1980 (44 U.S.C. 3501 et seq.), the Office of List of Subjects in 14 CFR Part 39 lenses, etc. may be necessary. Surface Management and Budget (OMB) has cleaning and elaborate procedures may be approved the information collection Air transportation, Aircraft, Aviation required.’’ requirements contained in this AD and has assigned OMB Control Number 2120–0056. safety, Safety. Corrective Action (1) If the inspection was done after the The Proposed Amendment (g) If any fractured or cracked link is effective date of this AD: Submit the report detected during any inspection required by and any fractured/cracked link within 30 Accordingly, under the authority paragraph (f) of this AD, before further flight, days after the inspection. delegated to me by the Administrator, replace the fractured/cracked link and do the (2) If the inspection was accomplished the FAA proposes to amend 14 CFR part applicable related investigative and prior to the effective date of this AD: Submit 39 as follows: corrective actions by doing all the actions in the report and any fractured/cracked link accordance with Part B of the within 30 days after the effective date of this PART 39—AIRWORTHINESS Accomplishment Instructions of Bombardier AD. DIRECTIVES Alert Service Bulletin A601R–27–130, Revision ‘‘B,’’ including Appendices A and No Submission of Comment Sheets 1. The authority citation for part 39 B, dated May 11, 2004; except as required by (m) Although the service bulletin continues to read as follows: paragraph (h) of this AD. referenced in this AD specifies to submit (h) If any crack is found on the aileron lugs comment and compliance sheets to the Authority: 49 U.S.C. 106(g), 40113, 44701. during any related investigative action manufacturer, this AD does not include that required by paragraph (g) of this AD, and the requirement. § 39.13 [Amended] service bulletin recommends contacting Bombardier for disposition: Before further Alternative Methods of Compliance 2. The FAA amends § 39.13 by adding (AMOCs) the following new airworthiness flight, disposition and replace the cracked directive (AD): aileron lug in accordance with a method (n) The Manager, New York Aircraft approved by the Manager, New York Aircraft Certification Office, FAA, has the authority to Bombardier, Inc. (Formerly Canadair): Certification Office (ACO), FAA, or Transport approve AMOCs for this AD, if requested in Docket No. FAA–2004–19763; Canada Civil Aviation (TCCA) (or its accordance with the procedures found in 14 Directorate Identifier 2004–NM–187–AD. delegated agent). CFR 39.19.

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Related Information • By fax: (202) 493–2251. personnel concerning this proposed AD. (o) Canadian airworthiness directive CF– • Hand Delivery: Room PL–401 on Using the search function of that 2004–13, dated July 20, 2004, also addresses the plaza level of the Nassif Building, website, anyone can find and read the the subject of this AD. 400 Seventh Street SW., Washington, comments in any of our dockets, Issued in Renton, Washington, on DC, between 9 a.m. and 5 p.m., Monday including the name of the individual November 26, 2004. through Friday, except Federal holidays. who sent the comment (or signed the Ali Bahrami, For service information identified in comment on behalf of an association, Manager, Transport Airplane Directorate, this proposed AD, contact Boeing business, labor union, etc.). You can Aircraft Certification Service. Commercial Airplanes, P.O. Box 3707, review DOT’s complete Privacy Act [FR Doc. 04–26796 Filed 12–6–04; 8:45 am] Seattle, Washington 98124–2207. Statement in the Federal Register published on April 11, 2000 (65 FR BILLING CODE 4910–13–P You can examine the contents of this AD docket on the Internet at http:// 19477–78), or you can visit http:// dms.dot.gov, or in person at the Docket dms.dot.gov. DEPARTMENT OF TRANSPORTATION Management Facility, U.S. Department We are reviewing the writing style we of Transportation, 400 Seventh Street currently use in regulatory documents. Federal Aviation Administration SW., room PL–401, on the plaza level of We are interested in your comments on the Nassif Building, Washington, DC. whether the style of this document is 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: clear, and your suggestions to improve Technical information: Margaret the clarity of our communications that [Docket No. FAA–2004–19764; Directorate affect you. You can get more Identifier 2004–NM–02–AD] Langsted, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, information about plain language at RIN 2120–AA64 Seattle Aircraft Certification Office, http://www.faa.gov/language and http:// www.plainlanguage.gov. Airworthiness Directives; Boeing 1601 Lind Avenue, SW., Renton, Model 777–200 and –300 Series Washington 98055–4056; telephone Examining the Docket Airplanes (425) 917–6500; fax (425) 917–6590. You can examine the AD docket on Plain language information: Marcia the Internet athttp://dms.dot.gov, or in AGENCY: Federal Aviation Walters, [email protected]. person at the Docket Management Administration (FAA), DOT. SUPPLEMENTARY INFORMATION: Facility office between 9 a.m. and 5 ACTION: Notice of proposed rulemaking Docket Management System (DMS) p.m., Monday through Friday, except (NPRM). Federal holidays. The Docket The FAA has implemented new Management Facility office (telephone SUMMARY: The FAA proposes to adopt a procedures for maintaining AD dockets new airworthiness directive (AD) for (800) 647–5227) is located on the plaza electronically. As of May 17, 2004, new level of the Nassif Building at the DOT certain Boeing Model 777–200 and –300 AD actions are posted on DMS and series airplanes. This proposed AD street address stated in the ADDRESSES assigned a docket number. We track section. Comments will be available in would require applying an anti-static each action and assign a corresponding conductive coating to the fuel access the AD docket shortly after the DMS directorate identifier. The DMS AD receives them. and thermal anti-icing blowout doors at docket number is in the form ‘‘Docket the location of the bonding fasteners on No. FAA–2004–99999.’’ The Transport Discussion the leading edge of the wings, and Airplane Directorate identifier is in the We have received a report indicating performing a resistance test on the new form ‘‘Directorate Identifier 2004–NM– that, during production, an anti-static coating to ensure correct ground path 999–AD.’’ Each DMS AD docket also coating was not applied correctly on resistance. This proposed AD is lists the directorate identifier (‘‘Old fuel access and thermal anti-icing prompted by a report that an anti-static Docket Number’’) as a cross-reference blowout doors at the location of the coating was not applied correctly on for searching purposes. bonding fasteners on the leading edge of doors located within a flammable fluid Comments Invited the wings on certain Boeing Model 777– leakage zone. We are proposing this AD 200 and –300 series airplanes. The anti- to prevent an uncontrollable fire in the We invite you to submit any relevant static coating is necessary to help ensure leading edge of the wing, which could written data, views, or arguments an electrical bond ground path at the damage critical wing structures and regarding this proposed AD. Send your doors, which are located within a cause a fuel tank explosion. comments to an address listed under flammable fluid leakage zone. Without DATES: We must receive comments on ADDRESSES. Include ‘‘Docket No. FAA– the anti-static coating, a static charge this proposed AD by January 21, 2005. 2004–19764; Directorate Identifier may build up and provide an ignition ADDRESSES: Use one of the following 2004–NM–02–AD’’ in the subject line of source for flammable vapors when the addresses to submit comments on this your comments. We specifically invite static discharges. This condition, if not proposed AD. comments on the overall regulatory, corrected, could result in an • DOT Docket web site: Go to economic, environmental, and energy uncontrollable fire in the leading edge http://dms.dot.gov and follow the aspects of the proposed AD. We will of the wing, which could damage instructions for sending your comments consider all comments submitted by the critical wing structures and cause a fuel electronically. closing date and may amend the tank explosion. • Government-wide rulemaking web proposed AD in light of those site: Go to http://www.regulations.gov comments. Relevant Service Information and follow the instructions for sending We will post all comments we We have reviewed Boeing Special your comments electronically. receive, without change, to http:// Attention Service Bulletin 777–57– • Mail: Docket Management Facility, dms.dot.gov, including any personal 0046, dated September 25, 2003. The U.S. Department of Transportation, 400 information you provide. We will also service bulletin describes procedures for Seventh Street SW., Nassif Building, post a report summarizing each applying an anti-static conductive room PL–401, Washington, DC 20590. substantive verbal contact with FAA coating on the fuel access and thermal

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anti-icing blowout doors, and This regulation is within the scope of Boeing Special Attention Service Bulletin performing a resistance test on the new that authority because it addresses an 777–57–0046, dated September 25, 2003. coating to ensure correct ground path unsafe condition that is likely to exist or Unsafe Condition resistance. Accomplishing the actions develop on products identified in this specified in the service information is proposed AD. (d) This AD was prompted by a report that intended to adequately address the an anti-static coating was not applied Regulatory Findings unsafe condition. correctly on doors located within a We have determined that this flammable fluid leakage zone. We are issuing FAA’s Determination and Requirements proposed AD would not have federalism this AD to prevent an uncontrollable fire in of the Proposed AD implications under Executive Order the leading edge of the wing, which could We have evaluated all pertinent 13132. This proposed AD would not damage critical wing structures and cause a information and identified an unsafe have a substantial direct effect on the fuel tank explosion. condition that is likely to exist or States, on the relationship between the Compliance develop on other airplanes of this same national Government and the States, or (e) You are responsible for having the type design. Therefore, we are on the distribution of power and actions required by this AD performed within proposing this AD, which would require responsibilities among the various the compliance times specified, unless the accomplishing the actions specified in levels of government. actions have already been done. the service information described For the reasons discussed above, I previously, except as discussed in certify that the proposed regulation: Modification and Resistance Test ‘‘Difference Between this Proposed AD 1. Is not a ‘‘significant regulatory (f) Within 18 months after the effective and the Service Bulletin.’’ action’’ under Executive Order 12866; date of this AD, apply an anti-static 2. Is not a ‘‘significant rule’’ under the conductive coating to the fuel access and Difference Between This Proposed AD DOT Regulatory Policies and Procedures and the Service Bulletin thermal anti-icing blowout doors at the (44 FR 11034, February 26, 1979); and location of the bonding fasteners, and Boeing Special Attention Service 3. Will not have a significant perform a resistance test on the new coating, Bulletin 777–57–0046, dated September economic impact, positive or negative, in accordance with the Accomplishment 25, 2003, does not specify any action if on a substantial number of small entities Instructions of Boeing Special Attention the resistance does not meet the limits under the criteria of the Regulatory Service Bulletin 777–57–0046, dated specified in the service bulletin. The Flexibility Act. September 25, 2003. proposed AD would require that We prepared a regulatory evaluation (1) If the resistance measured between the operators reapply and retest the anti- of the estimated costs to comply with door surface and a fastener located within the static coating if the resistance does not this proposed AD. See the ADDRESSES doors’ surrounding support structure is meet the limits specified in the service section for a location to examine the within the limits specified in the service bulletin, and contact the FAA for regulatory evaluation. bulletin, no further action is required by this disposition of repairs if multiple List of Subjects in 14 CFR Part 39 paragraph. reapplications and retests do not meet (2) If the resistance measured between the the specified limits after the fifth Air transportation, Aircraft, Aviation door surface and a fastener located within the repetition of the test. safety, Safety. doors’ surrounding support structure is The Proposed Amendment outside the limits specified in the service Costs of Compliance bulletin, before further flight, repeat the This proposed AD would affect about Accordingly, under the authority actions as required by paragraph (f) of this 65 airplanes worldwide and 18 delegated to me by the Administrator, AD up to five times, as applicable. If the airplanes of U.S. registry. The proposed the FAA proposes to amend 14 CFR part results of the fifth test exceed the limits actions would take about 5 work hours 39 as follows: specified in the service bulletin, before per airplane, at an average labor rate of further flight, contact the Manager, Seattle PART 39—AIRWORTHINESS $65 per work hour. Based on these Aircraft Certification Office (ACO), FAA, for DIRECTIVES figures, the estimated cost of the disposition of repairs. proposed AD for U.S. operators is 1. The authority citation for part 39 Alternative Methods of Compliance $5,850, or $325 per airplane. continues to read as follows: (AMOCs) Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. (g) The Manager, Seattle ACO, FAA, has The FAA’s authority to issue rules § 39.13 [Amended] the authority to approve AMOCs for this AD, if requested in accordance with the regarding aviation safety is found in 2. The FAA amends § 39.13 by adding procedures found in 14 CFR 39.19. Title 49 of the United States Code. the following new airworthiness Subtitle I, Section 106, describes the directive (AD): Issued in Renton, Washington, on authority of the FAA Administrator. November 26, 2004. Subtitle VII, Aviation Programs Boeing: Docket No. FAA–2004–19764; Directorate Identifier 2004–NM–02–AD. Ali Bahrami, describes in more detail the scope of the Manager, Transport Airplane Directorate, agency’s authority. Comments Due Date Aircraft Certification Service. This rulemaking is promulgated (a) The Federal Aviation Administration [FR Doc. 04–26795 Filed 12–6–04; 8:45 am] under the authority described in (FAA) must receive comments on this AD Subtitle VII, Part A, Subpart III, Section action by January 21, 2005. BILLING CODE 4910–13–P 44701, ‘‘General requirements.’’ Under Affected ADs that section, the FAA is charged with promoting safety flight of civil aircraft (b) None. in air commerce by prescribing Applicability regulations for practices, methods, and (c) This AD applies to certain Boeing procedures the Administrator finds Model 777–200 and –300 series airplanes, necessary for safety in air commerce. certificated in any category; as listed in

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DEPARTMENT OF JUSTICE containing MS word, WordPerfect, part, on the practitioner being Adobe PDF, or Excel file formats only. authorized (e.g. licensed) to dispense Drug Enforcement Administration DEA will not accept any file format controlled substances by the state in other than those specifically listed here. which he/she practices (21 U.S.C. 21 CFR Part 1301 FOR FURTHER INFORMATION CONTACT: 823(f)). Valid state authority to dispense [Docket No. DEA–244P] Patricia M. Good, Chief, Liaison and controlled substances is a necessary, but Policy Section, Office of Diversion not sufficient, condition for obtaining a RIN 1117–AA89 Control, Drug Enforcement DEA registration. DEA will not register Administration, Washington, DC 20537, a practitioner at a particular location Clarification of Registration Telephone (202) 307–7297. within a state if the practitioner lacks Requirements for Individual SUPPLEMENTARY INFORMATION: valid state authority to dispense Practitioners controlled substances in that state. DEA Purpose of This Proposed Rule AGENCY: Drug Enforcement registration serves, in part, to reflect that Administration (DEA), Justice. There is confusion regarding whether the individual practitioner has been ACTION: Notice of proposed rulemaking. a practitioner who practices and is granted some level of controlled registered in one state and wishes to substances authority by the state. In SUMMARY: The Drug Enforcement practice and prescribe in another state light of the above, a DEA registration is Administration (DEA) proposes to must register with DEA in the second considered to be related directly and amend its registration regulations to state. DEA proposes to amend its exclusively to the license issued to the make it clear that when an individual regulations to make it clear that when practitioner by the state in which he/she practitioner who practices and is an individual practitioner who practices maintains the registration. registered in one state seeks to practice and is registered in one state seeks to Explanation of DEA Registration and prescribe controlled substances in practice and prescribe controlled Predicated on State Authority another state, he/she must obtain a substances in another state, he/she must separate DEA registration for the obtain a separate DEA registration for There are problems associated with subsequent state. The current regulation the subsequent state. use of a single DEA registration in different states. For instance, if a was intended to apply to intrastate Background offices only, but has been practitioner licensed in the State of misunderstood by some practitioners to The Controlled Substances Act (CSA) North Carolina and possessing a DEA apply to interstate offices. To avoid any requires that a separate registration be registration predicated on that state further misinterpretation, DEA is obtained for each location at which license subsequently opened an office in proposing to modify its current controlled substances are manufactured, Virginia, then any controlled substance regulation to indicate that it applies distributed, or dispensed (21 U.S.C. prescriptions he/she wrote in Virginia only to separate locations maintained 822(e)). Under this requirement, an would be invalid for the following within one state for which the individual practitioner must have a reason. To be valid in a particular practitioner possesses state licensure separate DEA registration, predicated on jurisdiction, a controlled substance and DEA registration. a separate state license, if he/she practices in offices that are located in prescription must be written by a DATES: Written comments must be different states and administers, practitioner who possesses valid state postmarked, and electronic comments dispenses directly, or prescribes authority in that jurisdiction and, must be sent, on or before February 7, controlled substances from both offices. equally important, the practitioner must 2005. However, DEA has provided in the possess a DEA registration predicated ADDRESSES: To ensure proper handling regulations (21 CFR 1301.12(b)(3)) that upon valid state authority in that of comments, please reference ‘‘Docket ‘‘an office used by a practitioner (who jurisdiction (or be exempted from the No. DEA–244’’ on all written and is registered at another location) where registration requirement) (21 CFR electronic correspondence. Written controlled substances are prescribed but 1306.03(a)). In the example cited above, comments being sent via regular mail neither administered nor otherwise the practitioner possesses valid state should be sent to the Deputy Assistant dispensed as a regular part of the authority in North Carolina and a DEA Administrator, Office of Diversion professional practice of the practitioner registration based upon that state Control, Drug Enforcement at such office, and where no supplies of authority. Therefore, the practitioner’s Administration, Washington, DC 20537, controlled substances are maintained,’’ controlled substance prescriptions Attention: DEA Federal Register is not a location for which a registration would be valid in North Carolina. Representative/CCD. Written comments must be obtained. This regulation is Because the practitioner lacks a DEA sent via express mail should be sent to intended to apply only to secondary registration based on valid state DEA Headquarters, Attention: DEA locations within the same state in which authority in Virginia, the practitioner’s Federal Register Representative/CCD, the practitioner maintains his/her DEA controlled substance prescriptions in 2401 Jefferson-Davis Highway, registration. However, because the Virginia would be invalid. Alexandria, VA 22301. Comments may language in Section 1301.12(b)(3) does Similarly, if an optometrist licensed be directly sent to DEA electronically by not specify that it pertains to intrastate in the State of Virginia and possessing sending an electronic message to locations only, individual practitioners a DEA registration predicated on said [email protected]. have been applying the regulation to license subsequently opened an office in Comments may also be sent interstate situations, which is contrary North Carolina prescribing oxycodone electronically through http:// to the intent of the regulation, the CSA, with acetaminophen (a Schedule II www.regulations.gov using the and the underlying principles that apply controlled substance) the prescription electronic comment form provided on to individual practitioner registration. would be invalid. This is due to the fact that site. An electronic copy of this that the DEA registration was issued document is also available at the State Licensure pursuant to Virginia authority while the http://www.regulations.gov Web site. The issuance by DEA of an individual prescription was written based on North DEA will accept electronic comments practitioner registration is predicated, in Carolina state licensure and authority.

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North Carolina and Virginia authorize Section 1(b). This rule has been governments. Therefore, no actions were different levels of prescribing authority determined to be a significant regulatory deemed necessary under the provisions to optometrists. In Virginia, optometrists action. Therefore, this action has been of the Unfunded Mandates Reform Act are only permitted to prescribe reviewed by the Office of Management of 1995. analgesics in Schedules III and IIIN, and Budget. This proposed rule merely while in North Carolina optometrists are clarifies existing regulations regarding Small Business Regulatory Enforcement authorized to prescribe Schedules II the registration by individual Fairness Act of 1996 through V controlled substances. practitioners conducting business in This rule is not a major rule as Therefore, the prescription for more than one state. oxycodone with acetaminophen would defined by Section 804 of the Small also be invalid due to the fact that Executive Order 12988 Business Regulatory Enforcement Virginia authority is more restrictive This regulation meets the applicable Fairness Act of 1996. This rule will not than North Carolina’s and does not standards set forth in Sections 3(a) and result in an annual effect on the allow the prescribing of Schedule II 3(b)(2) of Executive Order 12988 Civil economy of $100,000,000 or more; a controlled substances by optometrists. Justice Reform. major increase in costs or prices; or Title 21 U.S.C. 823(f) states that the significant adverse effects on Executive Order 13132 Attorney General (as delegated to DEA) competition, employment, investment, shall register practitioners to dispense This rulemaking does not preempt or productivity, innovation, or on the controlled substances if the applicant is modify any provision of state law; nor ability of United States-based authorized to dispense the controlled does it impose enforcement companies to compete with foreign- substances under the laws of the state in responsibilities on any state; nor does it based companies in domestic and which the applicant practices. Title 21 diminish the power of any state to export markets. U.S.C. 841(a) prohibits any person from enforce its own laws. Accordingly, this knowingly or intentionally dispensing a rulemaking does not have federalism List of Subjects in 21 CFR Part 1301 controlled substance except as implications warranting the application permitted by the CSA. As previously of Executive Order 13132. Administrative practice and procedure, Drug traffic control, Security stated, controlled substances may not be Paperwork Reduction Act dispensed without state authorization to measures. do so. This Notice of Proposed Rulemaking For the reasons set forth above, 21 merely clarifies that DEA registration Reason for Modification of Existing CFR 1301 is proposed to be amended as must be obtained by practitioners for follows: Regulation each state in which a practitioner To avoid any further conducts business, except under certain PART 1301—REGISTRATION OF misinterpretation, DEA is proposing to specific circumstances. While it is MANUFACTURERS, DISTRIBUTORS, modify its current regulation found in possible that the amendment of the AND DISPENSERS OF CONTROLLED 21 CFR 1301.12(b)(3) by adding the regulations could cause certain persons SUBSTANCES words ‘‘in the same state or jurisdiction who were not previously registered to of the United States’’ to the register with the Administration, it is 1. The authority citation for part 1301 parenthetical statement. This would not possible for DEA to determine how continues to read as follows: make clear that the regulation applies many persons might be affected by this only to separate locations maintained circumstance. It is important to note Authority: 21 U.S.C. 821, 822, 823, 824, within one state for which the that this rule serves merely as a 871(b), 875, 877, 951, 952, 953, 956, 957. practitioner possesses state licensure clarification; the Controlled Substances 2. Section 1301.12(b)(3) is proposed to and DEA registration. The practitioner Act, which establishes the requirement be revised to read as follows: must maintain separate state licensure of registration, has not been changed, and DEA registration for separate and the requirement of registration § 1301.12 Separate registrations for locations in a different state. addressed by this rulemaking remains separate locations. Regulatory Certifications consistent. Therefore, persons who * * * * * would register as a result of publication (b) * * * Regulatory Flexibility Act of this clarification should have been (3) An office used by a practitioner The Deputy Assistant Administrator previously registered with the hereby certifies that this rulemaking has Administration but were not registered (who is registered at another location in been drafted in accordance with the due to confusion regarding registration the same state or jurisdiction of the Regulatory Flexibility Act (5 U.S.C. requirements. Thus, at this time, as DEA United States) where controlled 605(b)), has reviewed this regulation, is not able to determine the impact of substances are prescribed but neither and by approving it certifies that this this rulemaking on the registrant administered nor otherwise dispensed regulation will not have a significant population, DEA will make any as a regular part of the professional economic impact on a substantial necessary revisions to the affected practice of the practitioner at such number of small entities. This proposed information collection at the time of office, and where no supplies of rule merely clarifies existing regulations renewal of the collection. controlled substances are maintained. regarding the registration by individual Unfunded Mandates Reform Act of * * * * * practitioners conducting business in 1995 more than one state. Dated: November 30, 2004. This rule will not result in the William J. Walker, Executive Order 12866 expenditure by State, local, and tribal Deputy Assistant Administrator, Office of The Deputy Assistant Administrator governments, in the aggregate, or by the Diversion Control. further certifies that this rulemaking has private sector, of $100,000,000 or more [FR Doc. 04–26808 Filed 12–6–04; 8:45 am] been drafted in accordance with the in any one year, and will not BILLING CODE 4410–09–P principles in Executive Order 12866 significantly or uniquely affect small

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DEPARTMENT OF THE TREASURY amount of time to be devoted to each (oax), Fifth Coast Guard District, 431 topic (signed original and eight copies) Crawford Street, Portsmouth, Virginia Internal Revenue Service by December 10, 2004. 23704–5004, hand-deliver them to A period of 10 minutes is allotted to Room 119 at the same address between 26 CFR Part 1 each person for presenting oral 9 a.m. and 2 p.m., Monday through comments. After the deadline for Friday, except Federal holidays, or fax [REG–208254–90 and REG–136481–04] receiving outlines has passed, the IRS them to (757) 398–6203. The Auxiliary RIN 1545–AO72 and RIN 1545–BD62 will prepare an agenda containing the and Recreational Boating Safety Branch, schedule of speakers. Copies of agenda Fifth Coast Guard District, maintains the Source of Compensation for Labor or will be made available, free of charge, at public docket for this rulemaking. Personal Service; Hearing the hearing. Because of access Comments and material received from restrictions, the IRS will not admit the public, as well as documents AGENCY: Internal Revenue Service (IRS), visitors beyond the immediate entrance indicated in this preamble as being Treasury. area more than 30 minutes before the available in the docket, will become part ACTION: Notice of public hearing on hearing. For information about having of this docket and will be available for proposed rulemaking. your name placed on the building inspection or copying at the above address between 9 a.m. and 2 p.m., SUMMARY: This document contains a access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT Monday through Friday, except Federal notice of public hearing on proposed holidays. regulations that describe the proper section of this document. FOR FURTHER INFORMATION CONTACT: basis for determining the source of Cynthia E. Grigsby, Dennis M. Sens, Project Manager, compensation from labor or personal Acting Chief, Publications and Regulations Auxiliary and Recreational Boating services performed partly within and Branch, Associate Chief Counsel, Legal Safety Branch, at (757) 398–6204. partly without the United States. Processing Division, (Procedures and SUPPLEMENTARY INFORMATION: DATES: The public hearing is being held Administration). on January 13, 2005, at 10 a.m. The IRS [FR Doc. 04–26838 Filed 12–6–04; 8:45 am] Request for Comments must receive outlines of the topics to be BILLING CODE 4830–01–P We encourage you to participate in discussed at the hearing by December this rulemaking by submitting 10, 2004. comments and related material. If you ADDRESSES: The public hearing is being DEPARTMENT OF HOMELAND do so, please include your name and held in the IRS Auditorium, Internal SECURITY address, identify the docket number for Revenue Building, 1111 Constitution this rulemaking (CGD05–04–196), Avenue, NW., Washington, DC. Coast Guard indicate the specific section of this Mail outlines to: CC:PA:LPD:PR document to which each comment (REG–208254–90 and REG–136481–04), 33 CFR Part 100 applies, and give the reason for each room 5203, Internal Revenue Service [CGD05–04–196] comment. Please submit all comments POB 7604, Ben Franklin Station, and related material in an unbound RIN 1625–AA08 1 Washington, DC 20044. Submissions format, no larger than 8 ⁄2 by 11 inches, suitable for copying. If you would like may be hand-delivered Monday through Special Local Regulations for Marine to know they reached us, please enclose Friday between the hours of 8 a.m. and Events; Severn River, College Creek, a stamped, self-addressed postcard or 4 p.m. to CC:PA:LPD:PR (REG–208254– Weems Creek and Carr Creek, envelope. We will consider all 90 and REG–136481–04), Courier’s Annapolis, MD Desk, Internal Revenue Service, 1111 comments and material received during Constitution Avenue, NW., Washington, AGENCY: Coast Guard, DHS. the comment period. We may change this proposed rule in view of them. DC or sent electronically, via the IRS ACTION: Notice of proposed rulemaking. Internet site at http://www.irs.gov/regs Public Meeting or via the Federal eRulemaking Portal at SUMMARY: The Coast Guard proposes to http://www.regulations.gov (IRS–REG– amend the special local regulations at We do not now plan to hold a public 208254–90 and REG–136481–04). 33 CFR 100.518, established for marine meeting. But you may submit a request for a meeting by writing to the address FOR FURTHER INFORMATION CONTACT: events held annually in the Severn River, Annapolis, Maryland by listed under ADDRESSES explaining why Concerning submissions of comments, one would be beneficial. If we the hearing, and/or to be placed on the publishing the name of the events and the approximate dates and modifying determine that one would aid this building access list to attend the hearing rulemaking, we will hold one at a time LaNita Van Dyke, (202) 622–7180 (not a the boundaries of the regulated area. The marine events included in this rule and place announced by a later notice toll-free number). in the Federal Register. SUPPLEMENTARY INFORMATION: The include the Safety at Sea Seminar, U.S. subject of the public hearing is the Naval Academy crew races and the Blue Background and Purpose notice of proposed regulations (REG– Angels air show. This proposed rule is The regulations at 33 CFR 100.518 208254–90 and REG–136481–04) that intended to restrict vessel traffic in will be effective annually for the was published in the Federal Register portions of the Severn River during the duration of each proposed marine event on Friday, August 6, 2004 (69 FR period of these marine events and is listed in paragraph (c) of Section 47816). necessary to provide for the safety of life 100.518, U.S. Naval Academy marine The rules of 26 CFR 601.601(a)(3) on navigable waters during the event. events. Paragraph (c) of Section 100.518 apply to the hearing. Persons who have DATES: Comments and related material lists the proposed effective dates for the submitted written or electric comments must reach the Coast Guard on or before Safety at Sea Seminar on the last and wish to present oral comments at February 7, 2005. Saturday of March, the U.S. Naval the hearing must submit an outline of ADDRESSES: You may mail comments Academy crew races on the third and the topics to be discussed and the and related material to Commander fourth Saturday of April, and the third

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Friday in May, and the Blue Angels air The Coast Guard certifies under 5 Unfunded Mandates Reform Act show on the last Tuesday and U.S.C. 605(b) that this proposed rule The Unfunded Mandates Reform Act Wednesday in May. Notice of exact would not have a significant economic of 1995 (2 U.S.C. 1531–1538) requires time, date and location will be impact on a substantial number of small Federal agencies to assess the effects of published in the Federal Register prior entities. This proposed rule would effect their discretionary regulatory actions. In to the event. The proposed northwest the following entities, some of which particular, the Act addresses actions and southeast boundaries of the might be small entities: the owners or that may result in the expenditure by a regulated area in section 100.518 would operators of vessels intending to transit State, local, or tribal government, in the be extended approximately 1200 yards or anchor in a portion of the Severn aggregate, or by the private sector of to accommodate the aerobatic River during the event. $100,000,000 or more in any one year. maneuvering area for the air show and This proposed rule would not have a Though this proposed rule would not encompass the rowing course for Naval significant economic impact on a result in such an expenditure, we do Academy crew races. The U.S. Naval substantial number of small entities for discuss the effects of this rule elsewhere Academy who is the sponsor for all of in this preamble. these events intends to hold them the following reasons. This proposed annually. rule would merely establish the dates on Taking of Private Property which the existing regulations would be This proposed rule would not effect a Discussion of Proposed Rule in effect and modify the boundaries of taking of private property or otherwise The Coast Guard proposes to amend the regulated area and would not have taking implications under the regulations at 33 CFR 100.518 by impose any new restrictions on vessel Executive Order 12630, Governmental revising the heading, revising paragraph traffic. Actions and Interference with (c) to set forth more specific event dates, If you think that your business, Constitutionally Protected Property and adjusting the boundaries of the organization, or governmental Rights. jurisdiction qualifies as a small entity regulated area in paragraph (a). This Civil Justice Reform proposed change is needed to control and that this rule would have a vessel traffic during the event to significant economic impact on it, This proposed rule meets applicable enhance the safety of participants, please submit a comment (see standards in sections 3(a) and 3(b)(2) of spectators and transiting vessels. ADDRESSES) explaining why you think it Executive Order 12988, Civil Justice qualifies and how and to what degree Reform, to minimize litigation, Regulatory Evaluation this rule would economically affect it. eliminate ambiguity, and reduce This proposed rule is not a burden. Assistance for Small Entities ‘‘significant regulatory action’’ under Protection of Children section 3(f) of Executive Order 12866, Under section 213(a) of the Small We have analyzed this proposed rule Regulatory Planning and Review, and Business Regulatory Enforcement under Executive Order 13045, does not require an assessment of Fairness Act of 1996 (Pub. L. 104–121), Protection of Children from potential costs and benefits under we want to assist small entities in Environmental Health Risks and Safety section 6(a)(3) of that Order. The Office understanding this proposed rule so that Risks. This rule is not an economically of Management and Budget has not they can better evaluate its effects on significant rule and would not create an reviewed it under that Order. It is not them and participate in the rulemaking. environmental risk to health or risk to ‘‘significant’’ under the regulatory If the rule would affect your small safety that might disproportionately policies and procedures of the business, organization, or governmental affect children. Department of Homeland Security jurisdiction and you have questions (DHS). concerning its provisions or options for Indian Tribal Governments We expect the economic impact of compliance, please contact the address This proposed rule does not have this proposed rule to be so minimal that listed under ADDRESSES. The Coast tribal implications under Executive a full Regulatory Evaluation under the Guard will not retaliate against small Order 13175, Consultation and regulatory policies and procedures of entities that question or complain about Coordination with Indian Tribal DHS is unnecessary. The effect of this this rule or any policy or action of the Governments, because it would not have proposed action merely establishes the Coast Guard. a substantial direct effect on one or dates on which the existing regulations more Indian tribes, on the relationship would be in effect and modifies the Collection of Information between the Federal Government and boundaries of the regulated area and This proposed rule would call for no Indian tribes, or on the distribution of would not impose any new restrictions power and responsibilities between the on vessel traffic. new collection of information under the Paperwork Reduction Act of 1995 (44 Federal Government and Indian tribes. Small Entities U.S.C. 3501–3520.). Energy Effects Under the Regulatory Flexibility Act Federalism We have analyzed this proposed rule (5 U.S.C. 601–612), we have considered under Executive Order 13211, Actions whether this proposed rule would have Arule has implications for federalism Concerning Regulations That a significant economic impact on a under Executive Order 13132, Significantly Affect Energy Supply, substantial number of small entities. Federalism, if it has a substantial direct Distribution, or Use. We have The term ‘‘small entities’’ comprises effect on State or local governments and determined that it is not a ‘‘significant small businesses, not-for-profit would either preempt State law or energy action’’ under that order because organizations that are independently impose a substantial direct cost of it is not a ‘‘significant regulatory action’’ owned and operated and are not compliance on them. We have analyzed under Executive Order 12866 and is not dominant in their fields, and this proposed rule under that Order and likely to have a significant adverse effect governmental jurisdictions with have determined that it does not have on the supply, distribution, or use of populations of less than 50,000. implications for federalism. energy. The Administrator of the Office

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of Information and Regulatory Affairs PART 100—SAFETY OF LIFE ON SUMMARY: We, the U.S. Fish and has not designated it as a significant NAVIGABLE WATERS Wildlife Service (Service), announce the energy action. Therefore, it does not 12-month finding on a petition to list require a Statement of Energy Effects 1. The authority citation for part 100 the following seven foreign swallowtail under Executive Order 13211. continues to read as follows: butterflies under the Endangered Authority: 33 U.S.C. 1233; Department of Species Act: Harris’ mimic swallowtail Technical Standards Homeland Security Delegation No. 0170.1. (Eurytides lysithous harrisianus), the The National Technology Transfer 2. In §100.518, revise the section Jamaican kite swallowtail (Eurytides and Advancement Act (NTTAA) (15 heading, paragraph (a)(1) and paragraph marcellinus), the Oaxacan swallowtail U.S.C. 272 note) directs agencies to use (c), to read as follows: (Papilio esperanza), the Fluminese voluntary consensus standards in their swallowtail (Parides ascanius), Hahnel’s regulatory activities unless the agency § 100.518 Severn River, College Creek, Amazonian swallowtail (Parides provides Congress, through the Office of Weems Creek and Carr Creek, Annapolis, hahneli), the southern tailed birdwing Maryland. Management and Budget, with an (Ornithoptera meridionalis), and the explanation of why using these (a)(1) Regulated area. The regulated Kaiser-I-Hind swallowtail (Teinopalpus standards would be inconsistent with area is established for the waters of the imperialis). The best available applicable law or otherwise impractical. Severn River from shoreline to information indicates that listing is not Voluntary consensus standards are shoreline, bounded to the northwest by warranted for Papilio esperanza and technical standards (e.g., specifications the route 50 fixed highway bridge and Ornithoptera meridionalis. For the of materials, performance, design, or bounded to the southeast by a line remaining five species, listing is operation; test methods; sampling drawn from the Naval Academy Light at warranted but precluded by higher- ° ′ ″ procedures; and related management latitude 38 58 39.5 N, longitude priority listing actions. Our rationale is ° ′ ″ systems practices) that are developed or 076 28 49 W thence to Greenbury Point discussed below. We request that you ° ′ ″ adopted by voluntary consensus at latitude 38 58 29 N, longitude submit any new information for these ° ′ ″ standards bodies. 076 27 16 W. All coordinates reference species concerning status and threats Datum NAD 1983. whenever it becomes available. This This proposed rule does not use information will help us monitor the technical standards. Therefore, we did * * * * * (c) Effective period. (1) This section is status of these species and encourage not consider the use of voluntary their conservation. consensus standards. effective during, and 30 minutes before each of the following annual events: DATES: The finding announced in this Environment (i) Safety at Sea Seminar, held on the document was made on November 18, last Saturday in March; 2004. Although we are not pursuing We have analyzed this proposed rule further action on these species at this under Commandant Instruction (ii) Naval Academy Crew Races, held on the third and fourth Saturday in time, we will accept new information on M16475.lD, which guides the Coast these species at any time. Guard in complying with the National April and the third Friday in May; and (iii) Blue Angels Air Show, held on ADDRESSES: Submit any comments, Environmental Policy Act of 1969 information, and questions by mail to (NEPA)(42 U.S.C. 4321–4370f), and the last Tuesday and Wednesday in May. the Chief, Division of Scientific have concluded that there are no factors Authority, U.S. Fish and Wildlife in this case that would limit the use of (2) The Commander, Fifth Coast Guard District will publish a notice in Service, 4401 N. Fairfax Drive, Room a categorical exclusion under section 750, Arlington, VA 22203; or by fax to 2.B.2 of the Instruction. Therefore, this the Federal Register and the Fifth Coast Guard District Local Notice to Mariners 703–358–2276; or by e-mail to rule is categorically excluded, under [email protected]. Comments figure 2–1, paragraph (34)(h), of the announcing the specific event dates and times. received will be available for public Instruction, from further environmental inspection, by appointment, Monday Dated: November 24, 2004. documentation. Special local through Friday from 8 a.m. to 4 p.m. at regulations issued in conjunction with a Ben R. Thomason, III, the above address. regatta or marine event permit are Captain, U. S. Coast Guard, Commander, FOR FURTHER INFORMATION CONTACT: specifically excluded from further Fifth Coast Guard District, Acting. Robert R. Gabel, Chief, Division of analysis and documentation under that [FR Doc. 04–26842 Filed 12–6–04; 8:45 am] Scientific Authority, at the above section. BILLING CODE 4910–15–P address, or by telephone, 703–358– Under figure 2–1, paragraph (34)(h), 1708; fax, 703–358–2276; or e-mail, of the Instruction, an ‘‘Environmental [email protected]. Analysis Check List’’ and a ‘‘Categorical DEPARTMENT OF THE INTERIOR Exclusion Determination’’ are not SUPPLEMENTARY INFORMATION: required for this rule. Comments on this Fish and Wildlife Service Background section will be considered before we Section 4(b)(3)(B) of the Endangered make the final decision on whether to 50 CFR Part 17 Species Act of 1973 (Act), as amended categorically exclude this rule from (16 U.S.C. 1531 et seq.), requires that, further environmental review. Endangered and Threatened Wildlife for any petition to revise the Lists of and Plants; 12-Month Finding on a List of Subjects in 33 CFR Part 100 Endangered and Threatened Wildlife Petition To List Seven Foreign Species and Plants that contains substantial Marine safety, Navigation (water), of Swallowtail Butterflies as scientific and commercial information, Reporting and recordkeeping Threatened or Endangered the Service make a finding within 12 requirements, Waterways. AGENCY: Fish and Wildlife Service, months of the date of receipt of the For the reasons discussed in the Interior. petition on whether the petitioned preamble, the Coast Guard proposes to action is (a) not warranted, (b) ACTION: Petition finding. amend 33 CFR part 100 as follows: warranted, or (c) warranted but

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precluded from immediate proposal by to the listing of these species were: (1) these rare butterflies, would create other pending proposals of higher The paucity of status information; (2) unnecessary restrictions on marketing, priority. Pursuant to section 4(b)(3)(C)(i) disagreement over the effects of over- would impede further research, would of the Act, when, in response to a collection; and (3) an assertion that such provide no substantive conservation petition, we find that listing a species is listings impede conservation efforts. benefit, and would hinder butterfly warranted but precluded, we must make These issues are discussed below. ranching that actually benefits a new 12-month finding each year until 1. Paucity of status information: propagation and encourages local we publish a proposed rule or make a Several commenters noted that measures to protect the animals and determination that listing is not information in one of the references we their habitats. While most of these warranted. These subsequent 12-month had used (Collins and Morris 1985) is points are not statutory factors findings are referred to as ‘‘resubmitted’’ old, outdated, or not thoroughly considered in listing species, we petition findings. scientific, and that the paucity of acknowledge that any substantive information provides an insufficient information that demonstrates how Previous Federal Action basis for listing. According to several these factors mitigate the status of the On January 10, 1994, the Service swallowtail butterfly experts, the best species is useful, and where substantive received a petition dated January 1, sources of worldwide information information was provided, it has been 1994, from Ms. Dee E. Warenycia to list continue to be Collins and Morris (1985) considered as part of the status review. the seven above-mentioned species of and New and Collins (1991), both of swallowtail butterflies as threatened or which were the sole sources of Nomenclature and Biology of the endangered. As the basis for her information used for the 1996 IUCN Species petition, Ms. Warenycia cited the IUCN species assessments (Mariano Gimenez The seven foreign butterfly species: (World Conservation Union) Red Data Dixon, Program Officer, Species Harris’ mimic swallowtail, the Jamaican Book, Threatened Swallowtail Survival Commission, IUCN, pers. kite swallowtail, the Oaxacan Butterflies of the World (Collins and comm. 2004). Indeed, as discussed in swallowtail, the Fluminese swallowtail, Morris 1985), in which these species our August 16, 2000, Federal Register Hahnel’s Amazonian swallowtail, the had been classified as Endangered, finding (65 FR 49958), an IUCN southern tailed birdwing, and the Vulnerable, or Rare. On May 10, 1994, designation alone does not provide Kaiser-I-Hind swallowtail, all of which the Service published a 90-day finding sufficient information to address the are the subject of this petition, belong to in the Federal Register (59 FR 24117) factors that we must consider under the family Papilionidae (order that the petition had presented section 4(a)(1) the Act. An extensive Lepidoptera). The Papilionidae are substantial information indicating that literature search has revealed that few generally known as swallowtail the requested action may be warranted. recently published treatments exist for butterflies, or simply as swallowtails, In that notice, we initiated a status swallowtail butterflies. Most regional and will herein be collectively referred review of the seven butterflies covered works were written a decade or more to as such. Synonyms and common by the petition, as well as 20 other ago (e.g., Brown and Heineman 1972; names are summarized in Table 1. butterfly taxa that were potentially of Tyler et al. 1994). None of these seven Nomenclature follows Morris and similar concern, and requested the species appears in the 2003 IUCN Red Collins (1985). submission of data and other List of Threatened Species (IUCN 2003) The Lepidoptera life cycle begins with information for preparation of a 12- because they have not been re-assessed mating. Swallowtails may brood (i.e., month finding. This petition finding against the 1997 criteria (M. Dixon, pers. produce offspring) once, twice, or only covers the seven butterfly species comm. 2004). There is also currently no several times per year. All Lepidoptera that were the subject of the original IUCN Lepidoptera Specialist Group. In undergo complete metamorphosis and petition. The other 20 species are an attempt to obtain the most current exhibit four distinct life stages: Egg, potential candidate species that must be information for this finding, the Service larva (caterpillar), pupa (chrysalis), and further evaluated, but for which any also solicited information from each adult. Swallowtails reputedly maintain further action is currently precluded by range country and from other domestic low population numbers and experience higher-priority listing actions. and international experts. Pursuant to sporadic rebounds. Food sources vary section 4(b)(1)(A), we have evaluated widely. Caterpillars eat plant material Summary of Comments and (such as leaves) and may be generalists, Recommendations the best scientific and commercial data available to make the determinations in enjoying a range of plant species, or In response to our request for this finding. they may be obligate feeders, feeding information in response to the 90-day 2. Effects of over-collection: Several solely on a particular species. Adults finding, we received 14 responses from commenter disagreed that over- typically feed on flower nectar. Some private citizens and public officials, collection of insects has a significant adults do not eat at all, others obtain both from the United States and abroad. adverse impact and noted that it is nutrients from carrion, and some pre- Commenters addressed all but two of nearly impossible for the entirety of a reproductive males obtain nutrients the seven species by name; the species’ eggs, larvae, pupae, and adults from riversides (known as ‘‘puddling’’). Fluminese swallowtail and Harris’ to be collected at a given time. However, Swallowtails may display sexual mimic swallowtail were not specifically experts generally agree that species with dimorphism, wherein males are mentioned. One commenter supported restricted distributions are more apt to generally smaller and/or more colorful the listing of the Jamaican kite be affected by over-collection than those than females. Four of the petitioned swallowtail; one commenter supported with wider distributions. Substantive species (Jamaican kite, Harris’ mimic the listing of the Kaiser-I-Hind information obtained from experts and swallowtail, Fluminese swallowtail, and swallowtail; and the remaining publications on this issue has been Southern tailed birdwing) are not commenters opposed the listing of all of incorporated into this assessment, as sexually dimorphic; one species the species or the listing of specific appropriate. (Oaxacan swallowtail) displays only butterflies. Species-specific information 3. Such listings impede conservation size dimorphism; and two species is discussed under the relevant species, efforts: Some commenters mentioned (Kaiser-I-Hind and Southern tailed below. Three main bases for opposition that listing might call undue attention to birdwing) are dimorphic both in color

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and size. Similarly, larvae and adults Populations are restricted to steep- is subject to any threat from disease or may display color polymorphism, sloped canyons in the Jua´rez Mountains predation. wherein the same species exhibits (F.R.R. de Velasco, pers. comm. 2004; R. D. The inadequacy of existing different color patterns. Swallowtails Robbins, pers. comm. 2004; Tyler et al. regulatory mechanisms: The Oaxacan may exhibit certain behaviors to 1994). Considered a relict of modern swallowtail is listed as threatened, and increase their chance of finding a mate. swallowtails, this species was its larval foodplant, Magnolia dealbata, ‘‘Hilltopping,’’ for instance, is a male discovered only in 1975 and, for the is also listed as endangered on Mexico’s behavior in which they seek out a high first 20 years, was only known from one List of Species at Risk (F.R.R. de ridge or hilltop whereupon they await colony (New and Collins 1991; Tyler et Velasco, pers. comm. 2004). Mexican the arrival of females, which tend to al. 1994). New colonies were discovered law, NOM (Norma Oficial Mexicana)– gravitate towards these areas. in the early 1990s; the total habitat 059–ECOL–2001, protects listed native Swallowtails are all strong flyers. Many remains restricted to an area less than species of flora and fauna that have been species fly several kilometers a day. 100 square kilometers (Tyler et al. assessed in any of four threat categories After mating, females often disperse to 1994). This species is listed as (threatened, endangered, specially find a new location to lay eggs. Some Vulnerable by the IUCN, due mainly to protected, and likely to be extinct; INE species disperse farther, sometimes as a a poaching problem that existed prior to 2003). There are no officially designated group. Although dispersal is sometimes 1994 (IUCN 2003; see B., below). protected areas or nature reserves in the referred to as migration, for butterflies A. Present or threatened destruction, Jua´rez Mountains (Da´vila et al. n.d.). this movement may not entail a return modification, or curtailment of its However, large tracts of Oaxacan trip. Where available, information on habitat or range: The Jua´rez Mountains swallowtail habitat are under the strict the lifespan, population dynamics, and region is generally threatened by control of indigenous Zapotec current population status of each logging, agriculture, grazing, communities (J. Sobero´n, pers. comm. species are provided in the species colonization, and potential construction 2004), and these communities are very assessments below. of hydroelectric dams (Da´vila et al. conservation oriented (F.R.R. de n.d.); however, there is no evidence that Velasco, pers. comm. 2004). The Summary of Factors Affecting the this species’ specific habitat is being Mexican Federal government oversees Species directly threatened (R. Robbins, pers. several sustainable resource Section 4(a)(1) of the Act (16 U.S.C. comm. 2004; Jorge Sobero´n, Director of management units in that region (de 1531 et seq.) and regulations CONABIO [the Scientific Authority of Ferranti et al. 2000), and this species is promulgated to implement the listing Mexico for the Convention on not one of the resources being exploited provisions of the Act (50 CFR part 424) International Trade in Endangered under this regulatory framework (F.R.R. set forth the procedures for adding Species of Wild Fauna and Flora, or de Velasco, pers. comm. 2004). species to the Federal Lists. A species CITES], pers. comm. 2004). Based on the The Oaxacan swallowtail is not listed may be determined to be endangered or best available information, we conclude in the Appendices of the Convention on threatened due to one or more of the that this species is not threatened by the International Trade in Endangered following five factors described in present or threatened destruction, Species of Wild Fauna and Flora section 4(a)(1): (A) The present or modification, or curtailment of its (CITES), but there is no information to threatened destruction, modification, or habitat or range. suggest that such a listing is needed. curtailment of its habitat or range; (B) B. Overutilization for commercial, Considered threatened by commercial overutilization for commercial, recreational, scientific, or educational trade in Europe (Melisch 2000), this recreational, scientific, or educational purposes: According to Collins and species is now listed on Annex B of the purposes; (C) disease or predation; (D) Morris (1985), only 20 specimens had European Union’s Council Regulation the inadequacy of existing regulatory been collected in the first 20 years after (EC) No. 338/97, which regulates mechanisms; and (E) other natural or the species’ discovery due to the fierce imports of certain species into any manmade factors affecting its continued protection of this species by local country in the European Community. existence. These factors and their communities. For a time, poaching Annex B includes all species listed in became a problem because several local CITES Appendix II and their look- application to each of the seven species residents would follow the colony and alikes, as well as species being traded at are discussed below. Each assessment remove specimens for commerce (Tyler levels that are incompatible with the begins with a species-specific status et al. 1994). In the mid-1990s, several survival of the species, as well as summary. smugglers were indicted in the United species that pose a threat to native Findings on Species for Which Listing Is States for trading in illegally collected species (CITES UK 2004). Import of an Not Warranted insects, including Oaxacan swallowtails Annex B-listed species must be (WildlifeWebsite.com 2000). Today, accompanied by information that Oaxacan Swallowtail (Papilio esperanza Mexican experts do not consider over- demonstrates that the import will not Bautelspacher, 1975) collection to be a threat (F.R.R. de detrimentally affect the conservation The Oaxacan swallowtail is endemic Velasco, pers. comm. 2004) because status of the species or its habitat (Eur- to the remote montane cloud forest of local communities do not allow Lex 2004). Based on the above Mexico’s Jua´rez Mountains (Oaxaca collection or sale of the species (J. information, this species is not State). Larvae feed on Magnolia Sobero´n, pers. comm. 2004). There are threatened by the inadequacy of existing dealbata Zucc. (common name also regulatory mechanisms in place regulatory mechanisms. unknown) (Felipe Ramı´rez Ruiz de that appear to be effectively regulating E. Other natural or manmade factors Velasco, Director General, Secretaria de trade in this species (see D., below). affecting its continued existence: There Medio Ambiente y Recursos Naturales, Thus, this species is not threatened by are no other known threats affecting this pers. comm. 2004). Adults prefer overutilization for commercial, species. Eupatorium sordidum Less. (dirty recreational, scientific, or educational In summary, in addition to the thoroughwort) and produce two annual purposes. discovery of new populations, the broods, one in the spring and one in late C. Disease or predation: There is no Oaxacan swallowtail is not subject to summer (Collins and Morris 1985). information to suggest that this species significant threats that cause the species

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to be threatened with extinction threatened by the present or threatened recreational, scientific, or educational throughout a significant portion of its destruction, modification, or purposes. range. Therefore, we have determined curtailment of its habitat or range. C. Disease or predation: Parasitic flies that listing of this species is not B. Overutilization for commercial, have been known to attack southern warranted. recreational, scientific, or educational tailed birdwings in the wild (Collins and Morris 1985). However, there is no Southern Tailed Birdwing (Ornithoptera purposes: Papua New Guinea began specific information to suggest that meridionalis Rothschild 1897) farming the southern tailed birdwing and other native butterflies in 1978. these parasites are currently threatening The southern tailed birdwing is native According to the non-profit Insect existing populations, and we are to lowland primary or secondary Farming and Trade Agency (IFTA), unaware of any other disease or rainforests of Indonesia and Papua New established in consultation with an predators that pose a threat to this Guinea. The larvae of this genus are entomologist-ecologist, the pupae are species. Thus, we conclude that disease known to feed solely on Aristolochia ranched and adults are sold in pairs or predation is not a current threat to spp. L. (birthwort). However, the (IFTA 2004; Parsons 1999). The Papua this species. identity of the specific larval foodplant New Guinea farming program was D. The inadequacy of existing of this species remains in dispute endorsed by the now-defunct IUCN regulatory mechanisms: In 1966, Papua (Parsons 1999; Dr. Wari Iamo, Lepidoptera Specialist Group (IFTA New Guinea declared the southern Department of Environment and 1985). Ranched specimens are often tailed birdwing protected under the Conservation, Papua New Guinea, pers. preferred over wild-caught specimens Fauna Protection Control Act, which comm. 2004). This birdwing butterfly because the wings of wild specimens are requires an amendment to the occupies a wide range, but populations often tattered from flying (Parsons legislation to allow any controlled are localized, found at altitudes between 1999). No wild-collected specimens are utilization of the species. Wild 20 and 200 meters above sea level permitted in international trade, and collection is prohibited, and wild- (Collins and Morris 1985; Dr. Wari designated exporters are strictly collected specimens are banned from Iamo, Department of Environment and controlled (W. Iamo, pers. comm. 2004; international trade (W. Iamo, pers. Conservation, Papua New Guinea, pers. Iamo Ila, Conservator of Fauna, comm. August 2004; G.R. Kula, pers. comm. 2004). In Indonesia (Irian Jaya), Department of Environment and comm.; 1994 Parsons 1991). Only there are three known localities of this Conservation, Papua New Guinea, pers. properly CITES-permitted adults are species (Parsons 1999). In Papua New allowed in international trade (IFTA Guinea, there are at least seven widely comm. 1994; 1997; Gaikovina R. Kula, Acting Secretary, Department of 2004), and import of these specimens distributed localities, and the species into Europe requires a further non- appears to be reasonably common in its Environment and Conservation, Papua New Guinea, pers. comm. 1994). Private detriment finding in addition to the habitat, especially in the spring (Parsons CITES findings made by exporting 1999; W. Iamo, pers. comm. 2004). It is citizens who are not part of IFTA must obtain certification from the Department countries (see D., above). Based on the listed by the IUCN as Endangered, above information, this species is not apparently due to threats from habitat of Environment and Conservation to carry out ranching and trading in this currently threatened by the inadequacy destruction (see A., below; IUCN 2003). of existing regulatory mechanisms. A. Present or threatened destruction, species (W. Iamo, pers. comm. 2004). E. Other natural or manmade factors modification, or curtailment of its This species has been listed in CITES affecting its continued existence: There habitat or range: The southern tailed Appendix II since 1979, and CITES data is no information to suggest that this birdwing populations are found in two suggest a recent downward trend in species is subject to threats other than protected areas in Papua New Guinea trade volume, from 582 specimens in those listed above. where wildlife harvest and habitat 2000, to 163 specimens in 2001, and 89 In summary, in addition to the destruction are prohibited (W. Iamo, specimens in 2002 (J. Caldwell, pers. discovery of new populations, the pers. comm. 2004). The species’ low- comm. 2004; W. Iamo, pers. comm. southern tailed birdwing is not subject lying habitat, in the center of its range, 2004). All of this trade has originated to significant threats that cause the is vulnerable to timber extraction (W. from Papua New Guinea, and most of it species to be threatened with extinction Iamo, pers. comm. 2004). However, has been recorded as ranched experts believe that properly managed specimens. A 2000 market study throughout a significant portion of its butterfly farming (as discussed below, revealed that this species was range, and therefore we have under B.) promotes habitat conservation threatened by commerce in Germany determined that listing of this species is by generating income as a viable (Melisch 2000), where the market price not warranted. alternative to deforestation (Dr. Rosser was reportedly US$8700 per pair Findings on Species for Which Listing Is W. Garrison and Mr. Michael Parsons, (Schu¨ tz 2000). The southern tailed Warranted but Precluded Research Associates, Los Angeles birdwing is now listed on the European County Museum of Natural History, Commission’s Annex B, which regulates Harris’ Mimic Swallowtail (Eurytides California, pers. comm. 1994; Dr. L. imports of certain species into Europe, lysithous harrisianus Hu¨ bner 1821) Orsak, Director, Christensen Research and requires that trade in these species Harris’ mimic swallowtail is native to Institute, Papua New Guinea, pers. is not detrimental to the survival of wild sub-coastal woods on unflooded fringes comm. 1994; Dr. Scott Miller, Chair, populations (see Oaxacan swallowtail, of ‘‘restinga’’ (swamp) habitat in the Natural Science, The State Museum of D.). While the reason for the decrease in Atlantic Forest of Brazil. Paraguay also Natural and Cultural History, Hawai’i, trade volume for this species is has been reported as a range country pers. comm. 1994; Parsons 1991, 1999). unknown (W. Iamo, pers. comm. 2004), (Collins and Morse 1985; Funet 2004), The Papua New Guinea farming its listing on Annex B may account for but there is no information on colonies program requires villagers to maintain a the decrease in trade because several of there. Larvae feed on Annona acutifolia healthy wild population on or near their the major importers are from European Sass. ex R.E. Fries (common name land (IFTA 1985). Based on the best countries. This information suggests unknown). Juveniles are occasionally available information, we have that this species is not threatened by reported on Rollinia laurifolia Schltdl. determined that this species is not overutilization for commercial, (common name unknown). Adults feed

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on species in a variety of genera from Museum of Natural History, Department previously burned areas has been several plant families (including of Entomology, Smithsonian Institution, reportedly slow (Singapore National Annonaceae [custard-apple family], Washington, DC pers. comm. 2004). Zoo 2000). Thus, we conclude that this Asteraceae [daisy family], Fabaceae Brown (1996) monitored the only subspecies is threatened by the present [legume family], Rubiaceae [madder known colony of the species (in Rio de or threatened destruction, modification, family], and Verbenaceae [verbena Janeiro) from 1984 to 1991, during or curtailment of its habitat or range family]). This subspecies is not listed in which time the population size ranged throughout a significant portion of its the 2003 IUCN Red List of Threatened from 50 to 250 individuals. Adults fly range, although thus far we are not Species (IUCN 2003). at an elevation of 1000 meters, and aware of a direct impact on the two Previously reported in the two brood only once per year, being found known colonies of this species. Brazilian states of Espirito Santo and almost exclusively from September to B. Overutilization for commercial, Rio de Janeiro, this subspecies is December. This colony is currently recreational, scientific, or educational confirmed only in the latter locality reported to be viable, vigorous, and purposes: There is no documentation of (Brown 1996). This has been interpreted stable (K. Brown, Jr., pers. comm. 2004). overutilization of this subspecies. as an indication that the subspecies has In 1997, another colony of unknown However, it is possible that this species been extirpated from Espirito Santo size was discovered in the Poco das is inadvertently entering trade (Collins and Morse 1985; Xerces 2004). Antas Biological Reserve (Rio de misidentified as Parides spp., although However, Brown postulates that this Janeiro), where it had not been seen in there is no specific information on this. could be due to misidentification due to 30 years. According to Brown, it is C. Disease or predation: There is no mimicry (Keith S. Brown, Jr., Livre- likely that more colonies exist between information to suggest that this species Docent, Universidade Estadual de these two known localities and in other is subject to any threat from disease or Campinas, Brazil, pers. comm. 2004). places, and he further states that their predation. Swallowtails occupying similar ranges flight habits ‘‘do not favor recording by D. Inadequacy of existing regulatory may exhibit mimicry such that visitors * * * it is also very hard to mechanisms: Instituto Brasileiro do unrelated species resemble each other. find, see, or capture’’ (K. Brown, Jr., Meio Ambiente de dos Recursos The specific purpose of this mimicry is pers. comm. 2004). Naturais Renova´veis; Brazil’s unknown, but it may be a defense A. Present or threatened destruction, Environmental Ministry (IBAMA) listed mechanism. Although scientifically modification, or curtailment of its this species as ‘‘strictly protected’’ in unproven, one form of mimicry, known habitat or range: Habitat destruction 1989. As such, collection and trade are as Batesian mimicry, consists of a prompted experts to consider this prohibited (Brown 1996). It is unclear palatable species (the mimic) that species to be either endangered (Collins whether the discovery of a second resembles an unpalatable species (the and Morris 1985; Tyler et al. 1994) or colony in the Poco das Antas Biological model). It is theorized that a predator critically endangered (Brown 1996). The Reserve, home of the charismatic golden (such as a bird) attempting to eat the mix of dense and open habitat preferred lion tamarin (Leontopithecus rosalia), unpalatable model will avoid that and by adult Harris’ mimic swallowtails is will benefit Harris’ mimic swallowtail. other similar-looking butterflies in the no longer the dominant vegetation type The Reserve continues to be threatened future. For such mimicry systems to be in Rio de Janeiro. With this habitat by inadequate protection, unresolved effective, it is generally believed that the almost entirely gone, the subspecies is land disputes, and illegal encroachment mimic must maintain lower population found only in sub-coastal areas adjacent by landless peasants (Conservation numbers than the model. to ‘‘restinga’’ (swamp) habitat (Otero International 2004). In 2002, criteria Harris’ mimic swallowtail is and Brown 1984). Considered the most were established for land use and polymorphic, mimicking at least three endangered vegetation type in the world occupation within a newly established species of Parides throughout its range. (Conservation International 2004), environmentally protected basin along There are two Harris’ mimic swallowtail restinga swampland has been converted the river where the new population of morphs (color patterns): the to rice fields and drained for urban this species was found. How or whether sebastianus-rurik morph, which mimics development and cattle pastures (Otero these criteria account for invertebrates is Parides zacynthus Fabricius (common and Brown 1984; WWF 2004a). In 1985, unknown (WWF 2004b). Thus, the name unknown) and the subspecies development threatened the only known regulatory mechanisms in existence may Parides nephalion Godart (cattle heart colony (Collins and Morris 1985). The be inadequate to protect this species. swallowtail); and, the ascanius morph, State of Rio de Janeiro harbors the E. Other natural or manmade factors which mimics the Fluminese densest human population in Brazil, affecting its continued existence: Other swallowtail, also a subject of this and the city suffers from air and water than the above-mentioned fires, some of petition finding (Collins and Morse pollution (CIA 2004; Conservation which may have been natural events, 1985; K.S. Brown, Jr., pers. comm. International 2004). The Poco das Antas there are no other factors known to 2004). The sebastianus-rurik morph is Reserve (site of the recently discovered affect this species’ continued existence. less common than the ascanius morph, colony of Harris’ mimic swallowtail) is In summary, although additional the latter of which constituted about plagued by fires. Established in 1973 populations may exist, there are only 70% of the population during a nearly and presently encompassing an area of two confirmed localities of Harris’ decade-long mark-recapture study approximately 6,883 square meters mimic swallowtail. This subspecies (Brown 1996). The ascanius morph (WWF 2004b), the Reserve has suffered appears to be generally threatened by generally persists farther north than the at least six fires since 1989 (Anonymous habitat destruction (clearing and fire) Fluminese swallowtail. Thus, it is 1997; Bryant 2002; Kyodo World and the potential of overutilization for possible that Harris’ mimic swallowtail Service 2000; Reuters 2002; Singapore commercial purposes. While regulatory exists to the north, in Espirito Santo, National Zoo 2000). At least two of mechanisms are in place to control where suitable habitat exists, but that it these fires were attributed to human commercial trade, it is unclear whether has been mistaken for the Fluminese causes (Anonymous 1997; Kyodo World existing regulatory mechanisms are swallowtail (Brown 1991; Otero and Service 2000). Fire breaks have been adequately protecting the species’ Brown 1984; Dr. Robert Robbins, constructed in the Reserve to help habitat. The combination of these Research Entomologist, National contain future fires, but regeneration of factors threatens this subspecies

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throughout a significant portion of its Jamaica, Cuba, Hispaniola, and Puerto WRC 2002). The presence of the range. Rico), is a commercially desirable tree. Jamaican kite swallowtail in Rozelle and Harris’ mimic swallowtail is a Its yellow wood is used to make fishing Cockpit Country has prompted NEPA to subspecies that faces threats that are low rods, pool cues, and other products seek protected-area status for both to moderate in magnitude and non- (Windsor Plywood 2004). This tree locations within the next 5–7 years imminent. It therefore receives a priority species reportedly does poorly in (Anonymous 2003). It is unclear how or rank of 12. disturbed habitats (Collins and Morris whether the Jamaican protected-area Jamaican kite Swallowtail (Eurytides 1985). Habitat destruction continues to network benefits the Jamaican kite marcellinus Doubleday 1846) be a primary threat to this species (Dr. swallowtail or protects it from the Audette Baillie, Research Fellow, above-mentioned potential threats of The Jamaican kite is endemic to Department of Life Sciences, University habitat loss and commercial utilization. Jamaica. The only known larval of the West Indies, Jamaica, pers. comm. E. Other natural or manmade factors foodplant is Oxandra lanceolata Baill. 2004). affecting its continued existence: (West Indian lancewood) (Bailey 1994; B. Overutilization for commercial, Jamaica lies within the Atlantic Brown and Heineman 1972; Garraway et recreational, scientific, or educational hurricane belt and is subject to severe al. 1993; Xerces 2004). There is no purposes: A survey of German markets tropical weather, such as tropical waves, information as to adult food preferences. concluded that this species is tropical depressions, tropical storms, Despite the presence of the larval threatened by commercial trade and hurricanes (Mahlung 2001). In the foodplant throughout the island, and (Melisch 2000). Schu¨ tz (2000) reported last 16 years, Jamaica has been although the species probably disperses the asking price for a female Jamaican devastated by a tropical storm (George only within 3 kilometers of its breeding kite swallowtail as US$150. This species 1998), a Category 3 hurricane (Gilbert site, the only confirmed breeding site is is neither listed under CITES nor on the 1988), and two Category 5 hurricanes Rozelle, located in the extreme European Commission’s Annex B, both (Mitch 1998; Ivan 2004). Hurricanes southeastern Parish of St. Thomas of which regulate international trade. Gilbert and Ivan caused extensive (Bailey 1994; Brown and Heineman The Jamaican kite swallowtail is not damage throughout the island, 1972; Garraway et al. 1993; R. Robbins, bred in captivity and, in particular, including Rozelle, the only known pers. comm. 2004; Strong and Johnson there is no organized captive-breeding breeding site for this species. In 1989, 2001; WRC 2001; Dr. T.W. Turner, program for this species in Jamaica (A. 75 percent of Rozelle Beach was eroded, President, Caribbean Surveys Ltd., Baillie, pers. comm. 2004). Thus, and extensive beach erosion occurred Florida, pers. comm. 1994). Reputedly overutilization for commercial purposes again in 2004 (Anderson 1989; Lehman unpredictable and sporadic in may be a threat to the Jamaican kite 1999; Go Local Jamaica 2004). These appearance, the Jamaican kite swallowtail. stochastic events are likely to have an swallowtail generally maintains low C. Disease or predation: There is no adverse effect on this species’ continued population levels, but becomes locally information to suggest that this species existence. abundant for a week or two at its only is subject to any threat from disease or In summary, the Jamaican kite known breeding site, where it regularly predation. swallowtail has only one known broods in the early summer and D. Inadequacy of existing regulatory breeding site. This species is threatened sometimes again in early fall (Collins mechanisms: Listed as an endemic by habitat destruction from human and Morris 1985; Garraway et al. 1993; species, Jamaica does not consider the activity and catastrophic natural storm Smith et al. 1994). Episodic population Jamaican kite swallowtail to be events. Storms, such as hurricanes, can explosions have been recorded, with threatened, and therefore, it is not also directly kill these butterflies. The large westerly migrations of males when protected by the Wildlife Protection Act species is also potentially threatened by population numbers are high (Brown of 1998 (NEPA 2004a); according to the collection and inadequate protection of and Heineman 1972; Collins and Morris National Environment and Planning its habitat; this species is not 1985; Garraway et al. 1993). Large Agency (NEPA), this protects only specifically protected by law. The numbers were reported in western ‘‘specified species’’ (NEPA 2004b). combination of these factors potentially parishes in the 1940s and 1950s (Bailey However, all requests to collect endemic threatens this species throughout a 1994; Garraway et al. 1993). Adults have wildlife in Jamaica must be directed to significant portion of its range. recently been sighted in the parishes of NEPA for approval (A. Baillie, pers. The Jamaican kite swallowtail is a St. Andrew, St. Ann, Trelawny, and comm. 2004). The protected area species that does not represent a Westmoreland on the extreme western network has been plagued with staff monotypic genus. It faces threats that coast, and the species has reportedly shortages and inadequate fines for are high in magnitude, but non- visited Florida (Bailey 1994; Funet violators (WWF 2001). The John Crow imminent. It therefore receives a priority 2004; Smith et al. 1994; WRC 2001). Mountains, spanning several parishes rank of 5. A. Present or threatened destruction, where adult Jamaican kite swallowtails modification, or curtailment of its have been seen, was declared a Fluminese Swallowtail (Parides habitat or range: Mining operations, protected area in 1993 (Anonymous ascanius Cramer 1775) deforestation, and a lack of public n.d.). Cockpit Country, the terrain of The Fluminese swallowtail is awareness for conservation issues are which has made it veritably endemic to Brazil. Residing in problematic on the entire island (WWF impenetrable to humans, became part of ‘‘restinga’’ (swamp) habitat in the 2001). The only confirmed breeding site the Parks-in-Peril project in 2001. Atlantic Forest of Brazil, adults can be has undergone extensive habitat Cockpit Country is located in Trelawny found flying in scrubby to urbanized destruction for agriculture and industry, Parish, where adult Jamaican kite locations (K.S. Brown, Jr., pers. comm. prompting many experts to designate swallowtails have recently been sighted. 2004). The only known larval foodplant the Jamaican kite swallowtail as The status of the species in this area is the poisonous vine Aristolochia Vulnerable (Collins and Morris 1983; may be clarified as researchers conduct macroura Gomez (Dutchman’s pipe), IUCN 2003; New and Collins 1991; surveys for the CITES Appendix-I which has a wider distribution than the Tyler et al. 1994). The larval hostplant, swallowtail (Pterourus homerus) butterfly itself (Otero and Brown 1984). West Indian lancewood (native to occupying the same area (TNC 2004; There is no information as to adult

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foodplant preferences. This species has which is an indicator of the potential of these factors potentially threatens this been reported from three Brazilian threat from commercial trade. This species throughout a significant portion States: Rio de Janeiro, Espirito Santo, species is advertised for sale in Japan of its range. and Sao Paulo. Although ideal habitat with the provision that no sales can be The Fluminese swallowtail is a exists in all three States, Rio de Janeiro made of dry or live insects to the species that does not represent a harbors the only colonies confirmed in ‘‘United States of America from Central monotypic genus. It faces threats that the past 50 years (Otero and Brown and South America also CITES are high in magnitude but non- 1984), perhaps due to mislabeling of butterflies’’ (http:// imminent. It therefore receives a priority initial collections (K.S. Brown, Jr., pers. www.worldinsect.com/). This species is rank of 5. comm. 2004). Assessed by the IUCN as not listed under CITES but is listed on Hahnel’s Amazonian Swallowtail Vulnerable, the species is sparsely the European Commission’s Annex B, (Parides hahneli Staudinger 1882) distributed at best, becoming seasonally which regulates imports of certain common, with sightings of up to 50 species into Europe (see Papilio Hahnel’s Amazonian swallowtail is individuals in one morning (IUCN 2003; esperanza, B.). It is unclear how this has endemic to three localities in the sandy Otero and Brown 1984; Tyler et al. affected trade in this species. Based on tributaries of the lower middle Amazon 1994). the above information, this species is Basin in Brazil (Collins and Morris Populations are localized but colonies potentially threatened by overutilization 1985; New and Collins 1991; Tyler et al. require a large area to maintain a viable for commercial purposes. 1994). The identification of the larval population (Otero and Brown 1984). In C. Disease or predation: There is no hostplant is unknown, but it is believed a study conducted from 1984 to 1991, information to suggest that this species to be either Aristolochia lanceolato- Brown (1996) found that a colony varied is subject to any threat from disease or lorato S. Moore (common name greatly (from 20 to 100 individuals) predation. unknown) or A. acutifolia Sass. ex R.E. from year to year, and individuals flew D. Inadequacy of existing regulatory Fries (common name unknown). This distances of 1000 meters. Although it mechanisms: In 1973, the Fluminese species occupies a fairly wide range, but was presumed that many populations swallowtail became the first insect ‘‘the area of its range is very lightly had gone extinct since 1970 and that no placed on Brazil’s list of animals populated’’ (K.S. Brown, Jr., pers. new colonies remained to be threatened with extinction, and the comm. 2004). The restricted nature of its discovered, other large colonies have species is currently considered habitat was determined only in the been found in Rio de Janeiro state, both imperiled by IBAMA, the Brazilian 1990s (R. Robbins, pers. comm. 2004). far inland and within the Poco das Environment Ministry (MMA 2004; Populations are characterized as very Antas Biological Reserve (K.S. Brown, Otero and Brown 1984). Although the local, rare, and patchy in distribution Jr., pers. comm. 2004; Collins and species is strictly protected from (Collins and Morris 1985; Tyler et al. Morris 1985; Otero and Brown 1984). In commerce, fines are apparently either 1994). Until 1973, this species was a recent visit to Poco das Antas, Dr. nonexistent or too nominal to dissuade known only in one location; two Robert Robbins (pers. comm. 2004) commercial collection (K.S. Brown, Jr., additional localized colonies were reported that the Fluminese swallowtail pers. comm. 2004). It is also unclear discovered in 1973 (Brown 1996; was ‘‘everywhere.’’ All colonies what measures have been taken to Collins and Morris 1985). There have continue to be monitored (K.S. Brown, reduce habitat destruction, for which been no recent discoveries of new Jr., pers. comm. 2004). the species was originally listed in 1973 populations (K.S. Brown, Jr., pers. A. Present or threatened destruction, (Otero and Brown 1984). The protection comm. 2004). This species is sympatric modification, or curtailment of its afforded Fluminese swallowtail (occupies the same range) with several habitat or range: The range of this populations within Poco das Antas butterflies, including at least two, species overlaps with Harris’ mimic Biological Reserve is also unknown (see Methona and Thyrides (common names swallowtail, and the restinga Harris’ mimic swallowtail, D.). Thus, unknown), that it reportedly mimics, swampland habitat upon which the the regulatory mechanisms in existence and the subspecies Parides chabrias Fluminese swallowtail depends for may be inadequate to protect this ygdrasilla (common name breeding is threatened by urbanization, species. unknown)(Brown 1996). In 1996, when conversion for cultivation and cattle E. Other natural or manmade factors this species was last assessed by the ranching, and arson (see Harris’ mimic affecting its continued existence: Other IUCN, there was insufficient data to swallowtail, A., above). The Fluminese than the fires, mentioned above, some of determine its status (IUCN 2003). swallowtail is particularly threatened by which may have been natural events, A. Present or threatened destruction, arson in the Poco das Antas Biological there are no other factors known to modification, or curtailment of its Reserve, because this is the only affect this species’ continued existence. habitat or range: Citing potential threats protected area large enough to maintain In summary, there are several known from habitat destruction, New and a viable Fluminese swallowtail colony Fluminese swallowtail colonies, each Collins (1991) considered the possibility (Otero and Brown 1984). Thus, a requiring a large area to maintain a that this species was critically significant portion of this species’ range viable population, and only one occurs threatened. Because the species’ is potentially threatened with habitat within a protected area. This species is ecological requirements are not well destruction. threatened by habitat destruction and understood, habitat destruction could be B. Overutilization for commercial, the potential inadequacy of regulatory a factor, but specific threats cannot be recreational, scientific, or educational mechanisms to protect the species’ clearly identified. Therefore, we are purposes: This butterfly is ‘‘easy to habitat, particularly in the Poco das unable to determine whether this catch,’’ and although ‘‘many people Antas Biological Reserve, considered species is or may be threatened by have bred the species,’’ there is no the only protected area large enough to habitat destruction. formal effort to ranch the species (K.S. maintain a viable population. This B. Overutilization for commercial, Brown, Jr., pers. comm. 2004). A survey species is also potentially threatened by recreational, scientific, or educational of German markets reported female overutilization for commercial purposes purposes: Although the species flies Fluminese swallowtails selling for and inadequate penalties to thwart high, making it harder to catch, ‘‘local US$560 (Melisch 2000; Schu¨ tz 2000), commercial collection. The combination people can at times effectively reduce

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populations since they know [this Igarashi 2001; Tordoff et al. 1999). The mining activities (E–Law 2002), and a species’] habits’-(K.S. Brown, Jr., pers. larval foodplant may differ across the recent report to by the Nepal Forest comm. 2004). Many experts agree that species’ range, including Magnolia Ministry considers habitat destruction species with restricted distributions or campbellii Hook.f. and Thompson in to be a critical threat to biodiversity, localized populations, such as Hahnel’s China (Yen and Yang 2001); Magnolia including this species (HMGN 2002). In Amazonian swallowtail, are more spp. L. in Vietnam (Funet 2004); Vietnam, the species is confirmed in vulnerable to over-collection than those Daphne spp. L. in India, Nepal, and three Nature Reserves, in areas where with a wider distribution (K.S. Brown, Myanmar (Funet 2004); and Daphne disturbance levels are low (Lien 2003; Jr., pers. comm. 2004; R. Robbins, pers. nipalensis (authority and common name Tordoff et al. 1999; Trai and Richardson comm. 2004). Commercial exploitation unknown) in India (Robinson et al. 1999). Habitat degradation is a potential threat to this species 2004). Though this species was first (deforestation and land conversion) is a (Melisch 2000; New and Collins 1991; described in 1843, its life history was primary threat to this species in Schu¨ tz 2000; Tyler et al. 1994). A not well characterized until 1986 Thailand (FAO 2001). Thus, this species survey of German markets found (Igarashi and Fukuda 2000). The Kaiser- is known to be threatened by habitat swallowtails to be among the most I-Hind swallowtail produces two broods destruction in some of its countries. popular species being sold; Hahnel’s per year (spring and late summer) B. Overutilization for commercial, Amazonian swallowtail has sold for (Igarashi 2001). Females are much larger recreational, scientific, or educational USD$200 per pair (Schu¨ tz 2000). The and rarer than males (Bond 1964). purposes: The Kaiser-I-Hind swallowtail species is not listed under CITES. It is The species’ range is larger today than was listed in CITES Appendix II in 1987 listed on the European Commission’s known at the time of the original and is listed in Annex B of the European Annex B, which regulates imports of petition, with confirmed reports in Laos, Union’s Council Regulation (see certain species into Europe (see Papilio Thailand, and Vietnam (FAO 2001; Oaxacan swallowtail, D.). CITES trade esperanza, B.), but it is unclear how this Igarashi 2001; Masui and Uehara 2000; data, obtained from the World listing has affected trade in this species. Osada et al. 1999). The range of the Conservation Monitoring Centre, As such, we believe that overutilziation Kaiser-I-Hind swallowtail overlaps with indicate that only 152 Kaiser-I-Hind for commercial purposes may constitute that of its close relative, the golden swallowtail specimens were traded a threat to the survival of the species. Kaiser-I-Hind swallowtail (Teinopalpus between 1991 and 2002, and originated C. Disease or predation: There is no aureus) in Laos and Vietnam. The primarily from China (John Caldwell, information to suggest that this species golden Kaiser-I-Hind swallowtail, which WCMC, pers. comm. 2004). Nearly half is subject to any threat from disease or is listed in CITES Appendix II, is of these were imported into the United predation. generally larger than the Kaiser-I-Hind States, all originating from China and D. Inadequacy of existing regulatory swallowtail (Masui and Uehara 2000; declared as wild-collected. In a 3-month mechanisms: Hahnel’s Amazonian Igarashi 2001). The IUCN lists the period (June–August 2004), a dealer in swallowtail is listed as a species ‘‘under Kaiser-I-Hind swallowtail in the China sold 23 unmounted specimens: 4 study’’ (Brown 1996). It is not listed on category of least concern (IUCN 2003), to one buyer in Germany and the rest to the Brazilian list of animals threatened but it is considered ‘‘rare’’ by Collins buyers in the United States. The average with extinction (MMA 2004). This may and Morris (1985) and Tyler et al. selling price was US$107 for females be due to the species’ wide range and (1994). Despite its widespread and US$45 for males. This commercial tendency to be locally common (K.S. distribution, local populations are not activity could not be compared with Brown, Jr., pers. comm. 2004). abundant (Collins and Morris 1985). CITES trade data because the 2004 E. Other natural or manmade factors The actual population status in Bhutan, CITES data will not be available until affecting its continued existence: There India, Laos, Myanmar, and Thailand is October 31, 2005. The Kaiser-I-Hind and is potential for foodplant competition unknown, although it has been golden Kaiser-I-Hind swallowtails with a sympatric butterfly, Parides confirmed to be extant in Nepal, resemble each other and both are chabrias ygdrasilla (common name Thailand, and Vietnam. No butterflies commercially valuable. The species’ unknown) (Collins and Morris 1985). are listed on the 1992 Red Data Book of ranges overlap in at least two, possibly Hahnel’s Amazonian swallowtail is Vietnam (Trai and Richardson 1999). In three, range countries, so there is a known from only three localities and 1994, Chinese experts considered the potential for both species to be collected consists of highly localized populations, species to be in ‘‘immediate danger of due to their resemblance to each other. which makes them potentially extinction,’’ with no verified There are unconfirmed reports that vulnerable to over-collection. occurrences in half a century (Professor this species is being captive-bred in Hahnel’s Amazonian swallowtail is a Wang Sung, Executive Vice Chairman of China (Yen and Yang 2001), where it is species that does not represent a the Endangered Species Scientific considered to be more valuable than the monotypic genus. It faces threats that Commission of China, pers. comm. southern tailed birdwing (Watanabe are low to moderate in magnitude, and 1994). However, recent publications 1997). In Nepal, collectors would the immediacy of the threat is non- indicate that the species remains extant commonly lie in wait for the butterflies imminent. Therefore, it receives a in China, although there is no in mountaintop encampments (New and priority rank of 11. information on population status (Pai Collins 1991). According to the Nepal and Wang 1998; Pai et al. 1996; Forestry Ministry, the high commercial Kaiser-I-Hind Swallowtail (Teinopalpus Watanabe 1997; Yen and Yang 2001). value of endangered species on the local imperialis Hope 1843) A. Present or threatened destruction, and international market may result in The Kaiser-I-Hind swallowtail is modification, or curtailment of its local extinctions of many of Nepal’s native to the Himalayan regions of habitat or range: Despite a Chinese most endangered plants and animals, Bhutan, China, India, Laos, Myanmar, moratorium on logging in 1999, Kaiser- including this species (HMGN 2002). Nepal, Thailand, and Vietnam. I-Hind swallowtail populations Unsustainable collection (for Preferring undisturbed montane continued to be threatened by consumption or souvenirs) is a primary deciduous forests, this fast-flying commercial and illegal logging in 2001 threat to this species in Thailand (FAO species flies near the treetops at (Yen and Yang 2001). In Nepal, the 2001). Thus, overutilization for altitudes of 1500–3050 m (Bond 1964; species is threatened by limestone commercial purposes threatens this

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species throughout a significant portion magnitude and imminent. It therefore being made, and our progress on listing of its range. receives a priority rank of 8. species previously found to be warranted but precluded is reported C. Disease or predation: There is no Summary of Findings information to suggest that this species annually in the Federal Register. Our is subject to any threat from disease or The Service has carefully assessed the most recent annual notice on these 12- predation. best scientific and commercial month ‘‘resubmitted’’ petition findings information available regarding the D. Inadequacy of existing regulatory on foreign species was published on present and future threats facing the mechanisms: The Kaiser-I-Hind May 21, 2004 (69 FR 29354). We seven foreign butterfly species in this swallowtail is not protected under the published a complete description of our petition. Based on our review, we find Wildlife Conservation law of Taiwan listing priority system on September 21, that two species, the Oaxacan (Yen and Yang 2001). In Nepal, where 1983 (48 FR 43098). The listing priority swallowtail and southern tailed it is listed as threatened, the species is number for each of the five butterfly birdwing, do not warrant listing under protected by the National Parks and species found to be warranted but the Act because, as summarized above Wildlife Conservation Act of 1973 precluded is presented in Table 1. Other for each of these species, new (HMGN 2002). Protective legislation in foreign species, comprising a large populations have been discovered and India and Nepal has previously been number of birds covered by petitions neither species is subject to significant considered ineffective (New and Collins received in 1980 and 1991, have listing threats that cause the species to be 1991). In Thailand, the Kaiser-I-Hind priority numbers that are equal to or threatened with extinction throughout a swallowtail is listed under the 1992 higher than those of at least some of the significant portion of its range. Further, Wildlife Reservation and Protection Act butterflies. both are strictly protected within their of 1992, which makes it illegal to collect As required by Section 4(b)(3)(C)(i) of respective ranges. Thus, this (whether wild or dead) or to have the the Act, the Service will reassess the determination of not warranted for these species in one’s possession (FAO 2001). warranted-but-precluded finding when two butterfly species constitutes the Despite regulation in international trade we publish our annual notice on agency’s final action on these species at by CITES and on Annex B in Europe, we resubmitted petition findings for foreign this time. However, we request that you believe that this species is threatened by species. The Service seeks data and submit any new information for these a lack of specific regulatory mechanisms comments from the public on this species concerning status and threats for the species itself as well as its petition finding. We will continue to whenever it becomes available. This habitat throughout a significant portion monitor the status of these species as information will help us monitor the of its range. new information becomes available. Our status of these species and encourage E. Other natural or manmade factors review of any new information received their conservation. will determine if a change in status is affecting its continued existence: A We also find, as discussed above, that review of the available information did warranted, including the need to list the remaining five species, Harris’ any species on an emergency basis. not indicate that this species was mimic swallowtail, the Jamacian kite threatened by other factors. swallowtail, the Fluminese swallowtail, References Cited In summary, the Kaiser-I-Hind Hahnel’s Amazonian swallowtail, and A complete list of all references cited swallowtail is a wide-ranging species the Kaiser-I-Hind swallowtail, warrant in this petition finding is available on that is experiencing varying degrees of listing as threatened. However, the request from the Division of Scientific threat throughout its range. There is publication of a proposed rule to list Authority (see ADDRESSES section). potential for habitat destruction in at these species remains precluded by least four range countries, and other higher-priority listing actions. Author collection for commercial purposes is Section 4(b)(3)(B)(iii) of the Act The primary author of this document reported throughout its range. However, indicates that the Service may make is Dr. Patricia De Angelis, Division of regulatory mechanisms may not be warranted-but-precluded findings with Scientific Authority, U.S. Fish and adequately protecting the species from regard to cases in which (1) an Wildlife Service, 4401 North Fairfax these threats. The combination of these immediate proposed rule is precluded Drive, Room 750, Arlington, Virginia factors potentially threatens this species by higher-priority proposals to list 22203. throughout a significant portion of its species as endangered or threatened, range. and (2) expeditious progress is being Authority The Kaiser-I-Hind swallowtail does made on other listing measures. The authority for this action is the not represent a monotypic genus. It Expeditious progress in listing Endangered Species Act (16 U.S.C. 1531 faces threats that are low to moderate in endangered and threatened species is et seq.).

TABLE 1.—PETITION FINDING FOR SEVEN FOREIGN SPECIES OF SWALLOWTAIL BUTTERFLIES (FAMILY: PAPILIONIDAE) [R=listing not warranted/removed; C=listing warranted but precluded]

Status Scientific name Synonyms Common name Historic range Category Priority

C ...... 12 ...... Eurytides lysithous Graphium lysithous Harris’ mimic swallowtail ..... Brazil, Paraguay (?). harrisianus. harrisianus; Mimoides lysithous harrisianus. C ...... 5 ...... Eurytides marcellinus ...... Graphium marcellinus; Jamaican kite swallowtail Jamaica. Neographium marcellinus; Blue swallowtail. Protographium marcellinus (nom. inv.); Protesilaus marcellinus.

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TABLE 1.—PETITION FINDING FOR SEVEN FOREIGN SPECIES OF SWALLOWTAIL BUTTERFLIES (FAMILY: PAPILIONIDAE)— Continued [R=listing not warranted/removed; C=listing warranted but precluded]

Status Scientific name Synonyms Common name Historic range Category Priority

R ...... n/a ...... Papilio esperanza ...... Pterourus esperanza Oaxacan swallowtail, La Mexico. Heraclides esperanza. llamadora. C ...... 5 ...... Parides ascanius ...... n/a ...... Fluminese swallowtail, Brazil. Ascanius swallowtail. C ...... 11 ...... Parides hahneli ...... n/a ...... Hahnel’s Amazonian swal- Brazil. lowtail. R ...... n/a ...... Ornithoptera meridionalis .... Troides meridionalis; Southern tailed birdwing ..... Indonesia, Papua New Schoenbergia Guinea. meridionalis. C ...... 8 ...... Teinopalpus imperialis ...... n/a ...... Kaiser-I-Hind swallowtail, Bhutan, China, India, Laos, Emperor of India. Myanmar, Nepal, Thai- land, Vietnam.

Dated: November 18, 2004. Consolidated Appropriations Act of FOR FURTHER INFORMATION CONTACT: Marshall P. Jones, Jr., 2004, and other applicable laws. Melanie Brown, 907–586–7228 or Deputy Director, Fish and Wildlife Service. DATES: Written comments must be [email protected]. [FR Doc. 04–26611 Filed 12–6–04; 8:45 am] received by January 21, 2005. SUPPLEMENTARY INFORMATION: The BILLING CODE 4310–55–P ADDRESSES: Send comments to Sue groundfish fisheries in the exclusive Salveson, Assistant Regional economic zone of the Bering Sea and Aleutian Islands management area DEPARTMENT OF COMMERCE Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: (BSAI) are managed under the FMP. The National Oceanic and Atmospheric Lori Durall. Comments may be North Pacific Fishery Management Administration submitted by: Council (Council) prepared the FMP • Mail: P.O. Box 21668, Juneau, AK under the authority of the Magnuson- 50 CFR Part 679 99802. Stevens Act, 16 U.S.C. 1801, et seq. • Hand delivery to the Federal Regulations implementing the FMP [Docket No. 041117321–4321–01; I.D. appear at 50 CFR part 679. General 110904D] Building: 709 West 9th Street, Room 420A, Juneau, AK. regulations governing U.S. fisheries also appear at 50 CFR part 600. RIN 0648–AS37 • Fax: 907–586–7557. • The Council has submitted Fisheries of the Exclusive Economic E-mail: BSA82–0648– Amendment 82 for review by the Zone Off Alaska; Aleutian Islands [email protected]. Include in the subject Secretary of Commerce, and a Notice of Subarea Directed Pollock Fishery line the following document identifier: Availability of the amendment was AI pollock proposed rule. E-mail published in the Federal Register on AGENCY: National Marine Fisheries comments, with or without attachments, Service (NMFS), National Oceanic and November 16, 2004 (69 FR 67107), with are limited to 5 megabytes. comments on the amendment invited Atmospheric Administration (NOAA), • Webform at the Federal Commerce. through January 18, 2005. Comments eRulemaking Portal: may address the FMP amendment, the ACTION: Proposed rule; request for www.regulations.gov. Follow the proposed rule, or both, but must be comments. instructions at that site for submitting received by January 18, 2005, to be SUMMARY: NMFS issues a proposed rule comments. considered in the approval/disapproval that would implement Amendment 82 Copies of the Environmental decision on the FMP amendment. All to the Fishery Management Plan for Assessment/Regulatory Impact Review comments received by that time, Groundfish of the Bering Sea and (EA/RIR) prepared for the proposed whether specifically directed to the Aleutian Islands Management Area rule, the 2000 FMP level biological FMP amendment or to the proposed (FMP). Amendment 82, if approved, opinion, and the 2001 biological rule, will be considered in the approval/ would establish a framework for opinion and its June 2003 supplement disapproval decision on the FMP management of the Aleutian Islands for the Steller sea lion protection Amendment. subarea (AI) directed pollock fishery. measures may be obtained from the Background This action is necessary to implement addresses stated above or from the provisions of the Consolidated Alaska Region NMFS website at The Consolidated Appropriations Act Appropriations Act of 2004 that require www.fakr.noaa.gov. of 2004 (Public Law (Pub. L.) 108–199) the AI directed pollock fishery to be Written comments regarding the was signed into law on January 23, allocated to the Aleut Corporation for burden-hour estimates or other aspects 2004. Section 803 of this law allocates the purpose of economic development of the collection-of-information the AI directed pollock fishery to the of Adak, Alaska. This action is intended requirements contained in this proposed Aleut Corporation for economic to promote the goals and objectives of rule may be submitted to NMFS, Alaska development of Adak, Alaska. The the Magnuson-Stevens Fishery Region, and by e-mail to statute permits the Aleut Corporation to Conservation and Management Act [email protected], or fax to authorize one or more agents for (Magnuson-Stevens Act), the FMP, 202–395–7285. activities necessary for conducting the

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AI directed pollock fishery. Throughout 4. A new AI Chinook salmon pollock fishery in the paragraph title this preamble, the term ‘‘Aleut prohibited species catch limit that, and to include Pub. L. 108–199 in the Corporation’’ will mean the Aleut when reached, would close the existing list of statutes applicable to the BSAI Corporation or its authorized agent(s) Chinook salmon savings areas in the AI. pollock fisheries. Prior to Pub. L. 108–199, the AI for purposes of describing activities § 679.2 Definitions required for managing the AI directed directed pollock fishery was managed pollock fishery. pursuant to the AFA. The AFA allocated Several definitions would be revised Public Law 108–199 requires the the AI directed pollock fishery to and four definitions would be added by Aleut Corporation’s selection of specific harvesters and processors this proposed rule for the AI directed participants in the AI directed pollock named in the AFA and specified in pollock fishery. fishery and limits participation to regulations at 50 CFR part 679. Public The ‘‘Aleut Corporation’’ is identified American Fisheries Act (AFA) (Pub. L. Law 108–199 supersedes portions of the in Pub. L. 108–199 as a business 105–277, Title II of Division C) qualified AFA and allocates all the AI directed incorporated pursuant to the Alaska entities and vessels 60 feet (18.3 m) or pollock fishery to the Aleut Corporation. Native Claims Settlement Act (43 U.S.C. less in length overall (LOA) with certain The implementation of Pub. L. 108–199 1601 et seq.). A definition of the Aleut endorsements. Section 803(b) of Pub. L. requires the amendment of AFA Corporation would be added by this 108–199 restricts the annual harvest of provisions in the FMP and in the proposed rule to clarify the identity of pollock in the AI directed pollock regulations at 50 CFR part 679 to the corporation that would receive the fishery by vessels 60 feet (18.3 m) LOA provide for the allocation of the AI AI directed pollock fishery allocation. A definition of the ‘‘AI directed or less to less than 25 percent of the directed pollock fishery to the Aleut pollock fishery’’ would be added to annual allocation until 2009, and to less Corporation and for the management of mean the directed fishery for pollock than 50 percent of the annual allocation this fishery. allocated to the Aleut Corporation. This prior to 2013. These vessels must The allocation of pollock to the AFA term does not include directed fishing receive 50 percent of the annual directed pollock fisheries under section for pollock under the Western Alaska directed pollock fishery allocation 206(b) of the AFA now only pertains to Community Development Quota (CDQ) starting in 2013 and beyond. A FMP the BS pollock TAC given that Pub. L. 108–199 fully allocates the AI directed Program that may occur in the AI. amendment and associated regulatory A vessel or processor selected by the amendments are needed to implement pollock fishery to the Aleut Corporation. Thus, AFA restrictions associated with Aleut Corporation and approved by these and other measures necessary to NMFS to harvest or process pollock in manage this fishery pursuant to the directed pollock fishery, including excessive harvesting and processing the AI directed pollock fishery during a provisions specified in Pub. L. 108–199. fishing year (January 1 through The Council adopted Amendment 82 shares under section 210(e) of the AFA, now apply only to the AFA allocations December 31) would be defined as an in June 2004 and clarified a portion of ‘‘Aleut Corporation entity.’’ Section its June action in October 2004. If of BS pollock. Similarly, AFA groundfish sideboard 679.2 would be revised to add a approved by the Secretary of Commerce, provisions under section 211 of the AFA definition for ‘‘Aleut Corporation Amendment 82 would revise the FMP to would not apply to AFA entities while entity’’ to facilitate its reference in establish the management framework for those entities are participating in the AI regulations. the AI directed pollock fishery. This directed pollock fishery. Groundfish The proposed rule would add a proposed rule would implement the species taken incidental to the AI definition for a ‘‘designated contact for following management provisions for directed pollock fishery would be the Aleut Corporation.’’ This individual the AI directed pollock fishery: deducted from the relevant TACs, and would be designated by the Aleut 1. Restrictions on the harvest fisheries for those species would be Corporation as the contact person for specifications for the AI directed managed by NMFS accordingly. management of the AI directed pollock pollock fishery, including: limitations Pending the nature and scope of fishery, including, but not limited to, on the size of the annual AI pollock incidental catch in the AI directed reporting of the selection of Aleut total allowable catch (TAC), limits on pollock fishery, the Council could Corporation entities set forth in the A season harvest of TAC, allocation consider separate groundfish sideboard § 679.4(m) of the proposed rule and requirement for vessels 60 feet (18.3 m) provisions for this fishery in the future. fulfilling the proposed recordkeeping LOA or less, and reallocation provisions and reporting requirements for the for unharvested amounts of the AI Proposed Regulatory Amendments fishery set forth under § 679.5. pollock allocations; The following describes the proposed The definitions in § 679.2 that refer to 2. Provisions for fishery monitoring, amendments to the regulations, by the AFA pollock fishery would be including: the Aleut Corporation’s section, that would be required to revised to remove references to the AI selection and NMFS’s approval of implement the management provisions directed pollock fishery. Public Law vessels and processors participating in for the AI directed pollock fishery 108–199 allocates AI directed pollock the AI directed pollock fishery, pursuant to Amendment 82 and Pub. L. fishery to the Aleut Corporation, and no restrictions on having pollock from the 108–199. longer to AFA cooperatives. AI and either the Bering Sea subarea Under the proposed rule and Pub. L. (BS) or the Gulf of Alaska on a vessel § 679.1 Authority 108–199, an Aleut Corporation entity at one time, observer and scale The BSAI pollock fisheries are must be selected by the Aleut requirements, catch monitoring control managed under the provisions of the Corporation and subsequently approved plans for shoreside and stationary AFA. Certain provisions of the AFA by NMFS before it could lawfully floating processors, and Aleut applicable to the AI directed pollock participate in the AI directed pollock Corporation’s and participants’ fishery are superseded by Pub. L. 108– fishery. Because AFA qualification responsibility for ensuring the harvest 199. Because the BSAI pollock fisheries alone would no longer allow does not exceed the AI directed pollock include the AI directed pollock fishery, participation in the AI directed pollock fishery allocation; this proposed rule would revise fishery, several AFA definitions would 3. Reporting requirements; and § 679.1(k) to include the AI directed be revised by changing the terms ‘‘BSAI

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pollock’’ to ‘‘BS pollock’’ and ‘‘BSAI Aleut Corporation’s selection and requirements for the AI directed pollock directed pollock’’ to ‘‘BS directed NMFS’ approval of participants in this fishery participants. pollock.’’ The definitions that would be fishery beyond a participant’s A new paragraph (m) would be added revised are ‘‘AFA catcher/processor,’’ qualification under the AFA. to § 679.4 to establish the annual ‘‘AFA catcher vessel,’’ ‘‘AFA crab This proposed rule would revise process for NMFS’ approval of processing facility,’’ ‘‘AFA entity,’’ § 679.4(l) to clarify that AFA permitting participants in the AI directed pollock ‘‘AFA inshore processor,’’ ‘‘AFA requirements would apply exclusively fishery. The participants selected by the mothership,’’ ‘‘designated primary to the BS pollock fishery, to vessels Aleut Corporation for the AI directed processor,’’ ‘‘fishery cooperative or greater than 60 feet (18.3 m) LOA in the pollock fishery must be approved by cooperatives,’’ ‘‘listed AFA catcher/ AI directed pollock fishery, and to all NMFS annually under criteria processor,’’ and ‘‘unlisted AFA catcher/ catcher/processors and motherships in established under Pub. L. 108–199 and processor.’’ Removing references to the the AI directed pollock fishery. in this proposed rule. NMFS’ approval AI in these AFA definitions would Paragraphs that reference BSAI pollock must be received by the Aleut clarify that meeting AFA qualifications harvest history would remain Corporation before the participant does not also qualify a harvester or unchanged by this rule because the would be authorized to fish in the AI processor for participating in the AI basis for establishing history for AFA directed pollock fishery. The proposed directed pollock fishery. participation was not changed by Pub. rule would require the Aleut The definition for ‘‘license limitation L. 108–199. Corporation to provide NMFS the groundfish’’ in § 679.2 would be revised Revisions would be made to identity of selected harvesters and/or to add an exception for pollock paragraphs (l)(1)(i) for applicability to processors at least 14 days before the harvested in the AI directed pollock the BSAI directed pollock fishery, participant is scheduled to begin fishery by vessels 60 feet (18.3 m) LOA (l)(5)(iii) for the single geographic harvesting or processing pollock in the or less. Public Law 108–199 states that location requirement for inshore AI directed pollock fishery. NMFS vessels 60 feet (18.3 m) LOA or less that processors, (l)(6)(ii)(B) for the delivery would review each participant selected by the Aleut Corporation relative to have a valid fishery endorsement may of BSAI pollock to designated be eligible to participate in the AI approval criteria established in cooperative processors, (l)(6)(ii)(C)(2) for directed pollock fishery. The fishery regulations. Upon approval, NMFS cooperative contract information endorsement is issued by the U. S. Coast would provide the Aleut Corporation a regarding BSAI pollock delivery, and Guard on the vessel’s U.S. Coast Guard letter showing NMFS’ approval of each (l)(6)(ii)(D)(2) for landing requirements documentation for participation in a U. participant and the date harvesting or for pollock harvested in the BSAI S. fishery. Vessels 60 feet (18.3 m) LOA processing by the participants in the AI directed pollock fishery. The revision to or less would not need to demonstrate directed pollock fishery may commence. paragraph (l)(6)(ii)(D)(1) for the LLP AI pollock harvest history and qualify The Aleut Corporation would be requirement would remove the for a license limitation permit (LLP) required to provide a copy of NMFS’ reference to the AI cooperative pursuant to § 679.4(k). This exception in approval letter to each participant in the the license limitation groundfish allocation and would make the AI directed pollock fishery before definition would reduce the licensing requirement applicable to vessels harvesting or processing by that burden for participants in the AI greater than 60 feet (18.3 m) LOA participant commences during the directed pollock fishery, would allow harvesting pollock in the AI directed fishing year. Vessels participating in the vessels 60 feet (18.3 m) LOA or less to pollock fishery. Vessels 60 feet (18.3 m) fishery would be required to carry a enter the fishery without previous LOA or less would not be required to copy of NMFS’ approval letter on the pollock fishing history or the necessity have AFA or LLP permits. Paragraphs vessel at all times while participating in for owners to have an LLP that names (l)(6)(ii)(D)(2)(i) and (ii) also would be the fishery. Processors would be that vessel, and would encourage revised to limit the landing required to provide documentation of economic development of Adak, Alaska, requirements for qualified catcher approval during NMFS inspections. by facilitating the building of a fleet of vessels to pollock taken in the BS only. This process would allow for approval vessels 60 feet (18.3 m) LOA or less. Public Law 108–199 does not require of participants before the fishery vessels 60 feet (18.3 m) LOA or less to commences and would assist § 679.4 Permits comply with other Federal fisheries enforcement personnel to rapidly Section 679.4 describes the permitting permitting requirements that may not be establish such approval during a requirements for participation in the easily met and which could restrict the boarding or inspection for compliance groundfish fisheries. Public Law 108– vessels’ participation. However, Federal monitoring or enforcement purposes. 199 requires harvesting and processing fisheries permits (FFPs) pursuant to Participants may be added to the participants in the AI directed pollock § 679.4(b) would be required for all AI approval list at any time during the fishery to be approved by the Aleut directed pollock fishery vessels to fishing year upon selection by the Aleut Corporation. Public Law 108–199 ensure Steller sea lion protection Corporation following the procedure set specifies that vessels eligible to harvest measures requiring vessel monitoring forth above 14 days before harvesting or pollock in the AI directed pollock systems (§ 679.28) apply to vessels processing would commence. Once a fishery either must be AFA qualified or fishing in the AI directed pollock participant is approved by NMFS for 60 feet (18.3 m) LOA or less. In June fishery. The FFP requirement applies to harvesting or processing pollock taken 2004, the Council recommended that all catcher vessels, catcher/processors, and in the AI directed pollock fishery during catcher/processors and motherships, motherships. The FFP requirement the fishing year, the participant would regardless of size, also be AFA qualified should not restrict participation in the remain approved by NMFS for the in order to participate in this fishery. AI directed pollock fishery considering duration of the fishing year, as long as Shoreside and stationary floating the minimal requirements for obtaining the Federal fishing permit and any processors would not need to be AFA the permit, and the FFPs are provided applicable endorsement remains qualified to participate in the AI free of charge. No regulatory revisions current. Subsequent disapproval for directed pollock fishery. The proposed are needed to implement the pollock participation in the AI directed pollock rule would establish criteria for the fishery endorsement and FFP fishery by the Aleut Corporation, for

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whatever reason, would be managed by under § 679.61(f). The Council processor and catcher vessel in the BS the Aleut Corporation through private requested that the Aleut Corporation directed pollock fishery and each contractual agreements with the submit a draft of the annual report to the catcher vessel greater than 60 feet (18.3 participant. Council by December 1 and a final m) LOA in the AI directed pollock Paragraph (m) also would include the report by February 1. The Council also fishery to have an AFA permit. procedures for appeal of NMFS’ requested a one-time report to be Paragraphs (k)(3)(iii) and (iv) limit the disapproval of the Aleut Corporation’s provided prior to the June 2006 Council amount of BSAI pollock to be processed selection of a participant for the AI meeting with information on how the by inshore processors and limit the directed pollock fishery. The Regional revenue from the fishery was spent, number of geographic locations at Administrator would notify the Aleut harvest success, Chinook salmon which BSAI pollock could be processed Corporation and the participant of bycatch, development of the small in a year. These limitations apply to the NMFS’ disapproval of the participant. vessel fleet, and pollock processing AFA pollock fishery, but are not The reason for the disapproval would be capacity. The Council would consider required in the AI directed pollock provided and the disapproved this information in these reports to fishery by either Pub. L. 108–199 or participant would have 30 days to determine if the AI directed pollock Amendment 82. Consequently, this provide additional evidence. After 30 fishery allocation should be adjusted. proposed rule would remove references days, the Regional Administrator would Management of the AI directed to the AI pollock fishery from each of issue an initial administrative pollock fishery would require revisions these paragraphs. determination (IAD) regarding the to logbooks and forms to ensure Paragraphs (k)(5), (k)(6), and (k)(7) selection and reasons for the decision. A accurate data collection. The two prohibit inshore AFA fishery disapproved participant would be able catcher vessel daily fishing logbooks, cooperatives from exceeding their to appeal the IAD under the appeals two catcher/processor daily cumulative annual allocations of BSAI pollock and procedure at § 679.43 and would be production logbooks (DCPLs), prohibit AFA-qualified vessels and permitted to participate in the AI mothership DCPL, and shoreside processors from harvesting or directed pollock fishery while the IAD processor DCPL would be revised by processing an excessive share of BSAI is under appeal. This revision would adding ‘‘AIP’’ to the management block pollock. Because all of the AI directed provide due process in the event of a of the logbooks to identify the Aleutian pollock fishery is allocated to the Aleut dispute with NMFS’ disapproval. Islands directed pollock fishery in the Corporation, the prohibitions in these reports. The two weekly production paragraphs are no longer appropriate for § 679.5 Recordkeeping and Reporting reports (WPRs), two check-in/check out the AI directed pollock fishery. This This proposed action would add a reports, buying station report, and daily proposed rule would revise these new paragraph (q) to the recordkeeping production report would be revised by paragraphs to remove references to the and reporting regulations at § 679.5 to adding ‘‘AIP’’ to the management block AI directed pollock fishery and would add requirements for the AI directed of the forms. The software for the ensure that these prohibitions continue pollock fishery. The Aleut Corporation shoreside processor electronic logbook to apply only to the AFA fisheries. would be required to submit a weekly report would be revised by adding New paragraph (l) would add catch report to NMFS for all pollock ‘‘AIP’’ to the management options prohibitions specific to the AI directed caught by all vessels fishing on its onscreen. pollock fishery. Harvesting and behalf. The information required would processing of pollock taken in the AI include: the catcher vessel Alaska § 679.7 Prohibitions directed pollock fishery would be Department of Fish and Game (ADF&G) The prohibitions specific to the AFA prohibited without selection by the identification number; FFP or Federal in § 679.7(k) would be revised by this Aleut Corporation and NMFS’ approval, processor permit number; delivery date; proposed rule to apply only to the BS as specified under § 679.4(m). NMFS the amount of pollock received in directed pollock fishery. Although many would post a list of NMFS approved pounds plus the weight of at-sea pollock of the prohibitions in this paragraph participants at www.fakr.noaa.gov that discards; and the ADF&G fish ticket continue to apply to the AI directed could be reviewed by the participant number. The proposed rule also would pollock fishery, several no longer apply before harvesting or processing require the Aleut Corporation to under Pub. L. 108–199. In paragraphs activities. This prohibition would designate a contact for communications (k)(3)(i) and (k)(4)(i), inshore processors ensure that only harvesters and regarding reporting and recordkeeping. and catcher vessels are prohibited from processors selected by the Aleut The designation of a contact and the processing and harvesting BSAI pollock, Corporation and approved by NMFS information required in the report respectively, without an AFA permit. could participate in the AI directed would ensure timely and complete Public Law 108–199 and Amendment pollock fishery. harvest information from the Aleut 82 would allow catcher vessels 60 feet Paragraph (l) also would prohibit Corporation is received to facilitate (18.3 m) LOA or less to harvest pollock catcher vessels from having onboard at oversight of the AI directed pollock in the AI directed pollock fishery and the same time pollock that was fishery. would allow shoreside and stationary harvested from the AI and from either The Council recommended that the floating processors without AFA the BS or the GOA. A catcher vessel Aleut Corporation be required to submit permits to process pollock taken in the would be required to offload all pollock both an annual report and a one-time AI directed pollock fishery. All catcher/ that was from the BS or the GOA before report about the use of its AI pollock processors, motherships, and catcher fishing in the AI directed pollock allocation. The annual report would vessels larger than 60 feet (18.3 m) LOA fishery and to offload all pollock taken include: (1) information describing the must be AFA qualified vessels to in the AI directed pollock fishery before use of the revenues generated from the participate in the AI directed pollock fishing in the BS or GOA. This AI directed pollock fishery by the Aleut fishery. Paragraphs (k)(3)(i) and (k)(4)(i) prohibition would facilitate Corporation for economic development would be revised to exclude AI pollock enforcement and the accurate in Adak, and (2) information about from the prohibition on harvesting accounting of pollock taken in the AI. catch similar to that required to be pollock without an AFA permit. These Because all catcher/processors and provided by the AFA cooperatives revisions would require each inshore motherships participating in the AI

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directed pollock fishery would be and proposed rule would implement AI pollock. The proposed rule would required to be AFA qualified, catcher/ these policy decisions. revise § 679.20(a)(5) to authorize the processors and motherships would be Section 206(a) of the AFA requires Regional Administrator to determine the prohibited from processing in the AI that ‘‘10 percent of the total allowable amount of the AI directed pollock directed pollock fishery without catch of pollock in the Bering Sea and fishery allocation or CDQ directed complying with the AFA catch weighing Aleutian Islands management area be fishing allowance that is not likely to be and observer sampling requirements allocated as a directed fishing harvested and to reallocate the under paragraphs (k)(2)(iii) and allowance’’ to the CDQ program. Public anticipated unused amounts to the BS (k)(2)(iv). This revision would ensure Law 108–199 does not prohibit a CDQ directed pollock fishery or the BS CDQ the quality of information collected pollock directed fishing allowance in pollock directed fishing allowance, regarding pollock processing. the AI. In October 2004, the Council respectively, as soon as practicable. The Paragraph (l) also would prohibit clarified its intent that the CDQ directed amount of reallocation would be limited harvesters from delivering pollock fishing allowance should be deducted by the BS pollock ABC and must be harvested in the AI directed pollock from the AI annual pollock TAC to consistent with determinations resulting fishery to shoreside or stationary create the initial pollock TAC in the from any associated consultations floating processors unless the processor same manner as the Bering Sea pollock conducted under the Endangered has a catch monitoring control plan allocations. The AI directed pollock Species Act (ESA). Based on the satisfying the requirements of fishery for the Aleut Corporation would Council’s funding policy, this would § 679.28(g) or to a processing vessel that be allocated from the initial pollock ensure that a portion of the BS pollock is not AFA qualified and that is not TAC after subtraction of the incidental fishery recommended TAC that was selected by the Aleut Corporation and catch amount. The Council did not applied to the AI recommended TAC approved by NMFS for processing recommend a change to the existing may be returned to the BS pollock pollock harvested in the AI directed regulatory provisions that establish fishery if it is not expected to be pollock fishery. separate CDQ directed fishing harvested in the AI. allowances in the AI and the Bering Sea The Steller sea lion protection To manage the harvest of the Aleut subareas. Thus, 10 percent of the TAC measures require harvest of pollock to Corporation pollock allocation, specified annually for each subarea be within the annual TAC amounts to paragraph (l) would impose prohibitions would be allocated to the CDQ pollock ensure harvest is appropriate to the on the Aleut Corporation and its entities directed fishing allowance, and the amount of available pollock biomass similar to prohibitions for AFA inshore Aleut Corporation and AFA directed and other considerations. Because of the cooperatives. The proposed rule would pollock fishery allocations would be current condition of the BS pollock prohibit harvest in excess of the harvest reduced by corresponding amounts. stock and the 2 million mt OY specifications for the AI directed This approach maintains Council maximum in the BSAI, the BS pollock pollock fishery by participants and by intent to not reduce the BSAI CDQ TAC is set well below the BS pollock the Aleut Corporation. This would directed fishing allowance as a result of ABC. The maximum amount of ensure that both the participants and the the Aleut Corporation allocation. The reallocation that could occur from the Aleut Corporation would be responsible Aleut Corporation allocation would AI subarea to the BS subarea is no more to maintain harvest amounts within the equal the AI pollock TAC minus the 10 than 19,000 mt minus the ICA. The AI directed pollock fishery annual, percent CDQ pollock directed fishing 19,000 mt TAC limit is approximately seasonal, and vessel allocations allowance and minus the incidental 1.3 percent of the 2005 proposed BS established in the harvest specifications. catch allowance (ICA). pollock TAC (1,474,450 mt). The § 679.20 General Limitations In consideration of the harvesting and proposed acceptable biological catch processing capacity for the AI directed (ABC) for pollock in the BS subarea is Section 679.20(a)(5) establishes the pollock fishery, economic development 2,363,000 mt. The 19,000 mt limit is 2 provisions for the pollock harvest needs for Adak, Alaska, and impacts on percent of the difference between the BS specifications in the BS, AI, Bogoslof other BSAI groundfish fisheries, the pollock TAC and ABC. Even with a District, and the GOA. The proposed Council recommended limits on the reallocation of 19,000 mt from the AI rule would add a new paragraph (iii) for amount of annual harvest in the AI subarea, the amount of pollock available the provisions for the AI directed directed pollock fishery. The proposed for harvest in the BS (1,493,450 mt) pollock fishery and to separate AI rule would establish these limits in a would be well below the ABC. pollock from the BS pollock harvest new paragraph § 679.20(a)(5)(iii). The Based on the 19,000 mt annual TAC specifications. annual AI pollock TAC would equal limit for AI pollock and on the current In June 2004, the Council 19,000 mt when the AI pollock ABC is biomass size of the BS pollock stock, recommended a method of funding the equal to or more than 19,000 mt. When any reallocation of unharvested AI annual allocation for the AI directed the AI pollock ABC is less than 19,000 pollock TAC is not likely to result in a pollock fishery in consideration of the mt, the annual AI pollock TAC would harvest in the BS that is excessive in optimum yield (OY), the CDQ pollock be no more than the ABC. The Council relation to available pollock biomass. As directed fishing allowance pursuant to determined that the 19,000 mt limit long as the gap between the BS pollock the AFA and § 679.31(a), and the minus the CDQ directed pollock fishing ABC and the BS pollock TAC is wide, combined TACs for the BSAI groundfish allowance and the ICA would provide the reallocation of unharvested pollock fisheries. The Council’s recommended an adequate amount of pollock to the from the AI to the BS is not likely to development of annual Aleut Corporation for economic adversely affect Steller sea lions or their recommendations for the Bering Sea development while not excessively critical habitat. If the biomass of the BS (BS) and AI TACs within the 2 million impacting the other BSAI groundfish pollock stock declines substantially in mt OY cap. The Council also fisheries, as combined annual TACs the future or if the gap between ABC recommended that the CDQ directed may not exceed the 2 million mt OY and TAC is substantially reduced, pollock fishery allowance not be cap. reallocation of unharvested AI pollock reduced by the establishment of an AI The proposed rule includes a may need to be restricted to protect pollock TAC. The proposed FMP text reallocation provision for unharvested Steller sea lions and their critical

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habitat. The condition of the BS stock The B season apportionment to the AI vessels 60 feet (18.3 m) LOA or less. The and the amount of AI pollock directed pollock fishery would be the first two allocation periods would reallocation would need to be remainder of the annual initial TAC establish a cap on how much of the considered at that time to determine the minus the A season apportionment, and allocation may go to small vessels. For likely effect on Steller sea lions and minus the annual ICA. Unharvested A 2013 and beyond, the amount to go to their critical habitat. No reallocation season pollock initial TAC may be the small vessels would be 50 percent would occur if the action was likely to reapportioned by the Regional of the allocation specified during the adversely affect Steller sea lions or their Administrator to the B season, if it is harvest specifications process. critical habitat. determined that the B season § 679.21 Prohibited Species Bycatch The seasonal apportionment of apportionment and reallocation are Management pollock harvest in the AI directed likely to be harvested. Otherwise, the pollock fishery would be revised by this Regional Administrator may reallocate The Council recommended a separate proposed rule. Pollock is an important unharvested AI pollock initial TAC to Chinook salmon prohibited species prey species for the endangered western the BS pollock fishery as long as the BS catch limit in the AI directed pollock distinct population segment of Steller pollock ABC is not exceeded, as fishery. Currently § 679.21(e)(1)(vii) sea lions. The protection measures for described above. establishes the BSAI Chinook salmon at Steller sea lions include temporal The CDQ fishery is not part of the 29,000 fish. This limit applies to all dispersion of pollock harvest. To Aleut Corporation’s directed pollock Chinook salmon taken when directed temporally disperse harvest of prey fishery in the AI. Any harvest of the fishing for pollock, including CDQ species, the Steller sea lion protection CDQ pollock directed fishing allowance pollock fisheries in the BSAI. When this measures require apportioning 40 in the AI would continue to be limit is reached in the BSAI pollock percent of the BSAI pollock TAC to the conducted with the same seasonal trawl fishery, the Chinook salmon A season and 60 percent to the B season. apportionments as currently specified savings areas are closed according to a The regulations currently state that the for the AI and BS subareas and CDQ schedule specified in seasonal apportionment applies to the components under § 679.20(a)(5)(i)(B). § 679.21(e)(7)(viii). The two Chinook BSAI pollock fishery. The proposed The proposed rule would reorganize salmon savings areas are shown in seasonal apportionment of AI directed these provisions under Figure 8 to 50 CFR part 679. One of pollock fishery would be established in § 679.20(a)(5)(i)(B) and continue to these areas is in the AI (area 1), and the a different manner than the seasonal apportion 40 percent of the CDQ other area is in the BS (area 2). Area 2 apportionment of BS pollock. The directed fishing allowance in the AI to is considered an important area for proposed rule would remove references the A season and 60 percent to the B pollock harvest in the BS. The pollock to AI pollock seasonal apportionment in season. The CDQ pollock directed fishery in the BS subarea has had §§ 679.20(a)(5)(i)(B) and (a)(5)(ii) and fishing allowances specified for the AI annual incidental catches of Chinook would add a new paragraph (iii) to and the BS subareas would be salmon well over 29,000 fish in 2002 describe the method of seasonal determined during the harvest and 2003 and likely will exceed the apportionment for the AI directed specifications process. 29,000 limit in 2004, resulting in the pollock fishery. Section 679.20(a)(5)(ii) currently closure of areas 1 and 2. The Council considered the Steller requires that the allocation of pollock in To reduce the potential impact of sea lion protection measures in both the AI and the Bogoslof District is Chinook salmon bycatch taken in the AI recommending the seasonal to be done in the same manner as the directed pollock fishery on the BS apportionment of the AI directed AFA allocations in the BS subarea. pollock fishery, the Council pollock fishery. The proposed rule Because Pub. L. 108–199 allocated the recommended a separate AI Chinook would limit the A season apportionment non-CDQ directed pollock fishery in the salmon prohibited species catch (PSC) to no more than the lesser of the annual AI to the Aleut Corporation, this limit of 700 fish. The AI directed initial TAC plus any CDQ fishery or 40 proposed rule would revise paragraph pollock fishery has been closed since percent of the annual ABC. The total (a)(5)(ii) to apply to the Bogoslof District 1999, and little recent information exists harvest of pollock in the A season from only. The establishment of an ICA when on Chinook salmon bycatch in the AI the directed fishery (AI directed pollock the directed pollock fishery in the AI is pollock trawl fishery. The 700 fish limit fishery and any CDQ fishery) and ICA closed would be addressed in a new is based on the highest rate of Chinook would not exceed 40 percent of the paragraph (iii) where harvest salmon bycatch observed in the AI ABC. This method of limiting seasonal specifications and seasonal allocations pollock fishery between 1991 and 1998 harvest based on ABC is a departure would be specified. and a 19,000 mt AI pollock TAC. If the from the use of TAC for the basis of Paragraph (a)(5)(iii) also would amount of Chinook salmon bycatch in seasonal apportionments. Because the specify the further allocation of the the AI subarea were to exceed the 700 annual TAC is capped at 19,000 mt Aleut Corporation’s allocation among fish limit, the proposed rule would when the ABC is greater than 19,000 mt, vessels approved to participate in the AI require the closure of the AI portion of the Council recommended providing for directed pollock fishery. Public Law the Chinook salmon savings areas only the annual initial TAC to be taken fully 108–199 allows the allocation of a (area 1 on Figure 8 to 50 CFR part 679). in the A season as long as the annual portion of the AI directed pollock The proposed rule would revise initial TAC plus any CDQ fishery does fishery to vessels 60 feet (18.3 m) LOA § 679.21(e)(1)(vii) by removing the AI not exceed 40 percent of the ABC. This or less in increasing amounts through pollock reference for the 29,000 would allow the participants to 2013. In 2004 through 2008, up to 25 Chinook salmon PSC limit. A new maximize the revenue potential from percent of the allocation may be paragraph (e)(1)(ix) would be added to the fishery by harvesting the more provided to vessels 60 feet (18.3 m) LOA establish the 700 Chinook salmon PSC valuable products which are available or less. In 2009 through 2012, up to 50 limit for the AI directed pollock fishery. early in the year and would keep the A percent of the allocation may be Further, the proposed rule revisions season harvest within the intended 40 provided to vessels 60 feet (18.3 m) LOA to § 679.21(e)(7)(viii) would provide that percent seasonal limits of the Steller sea or less. For 2013 and beyond, 50 percent reaching the BS pollock trawl Chinook lion protection measures. of the allocation must be provided to salmon PSC limit of 29,000 would close

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the Chinook salmon savings areas close fishery. NMFS staff observers would be measures for the AI directed pollock both in the AI and in the BS. The provided without charge to the vessel fishery. Chinook salmon savings area in the AI owner to collect this information. § 679.60 AFA Management Measures is not expected to be an important Current regulations do not require location for pollock harvest, so closing observers on catcher vessels less than 60 The authority in the section would be this area based on obtaining the BS PSC feet (18.3 m) LOA in the AI directed revised to include Pub. L. 108–199 in limit for Chinook salmon would not be pollock fishery. Revised paragraph (e)(1) the list of statutes applicable to the an excessive burden to the AI directed would require the owner of a vessel less BSAI pollock fisheries. pollock fishery and would provide than 60 feet (18.3 m) LOA in the AI § 679.61 Formation and Operation of additional protection to Chinook directed pollock fishery to accept a Fishery Cooperatives salmon. The incidence of Chinook NMFS staff observer and to comply with This section describes the formation salmon bycatch would be reviewed the safety requirements for carrying an and operation of fishery cooperatives for during the harvest specifications observer at § 679.50(g)(1)(ii). the purposes of the AFA pollock fishery. process to determine if the limit in this Information gathered by the NMFS staff Proposed revisions to §§ 679.61(b), proposed rule is appropriate based on observers may be used in considering (d)(3) and (g) would remove references recent catch information. future observer requirements for vessels to the AI directed pollock fishery. less than 60 feet (18.3 m) LOA in the AI § 679.23 Seasons Public Law 108–199 removes the AI directed pollock fishery. directed pollock fishery from the AFA Section 679.23(e)(2) would be revised Catcher vessels 60 feet (18.3 m) to less to include the AI directed pollock program. Paragraph (b) now states that than 125 feet (38.1 m) LOA in the AI fishery in the list of fisheries to which fishery cooperatives formed for the directed pollock fishery are required by seasonal apportionments apply. The purpose of cooperatively managing § 679.50(c)(1)(v) to have 30 percent Steller sea lion protection measures directed fishing in the BSAI directed observer coverage during a calendar require the pollock harvest in the BSAI pollock fishery must comply with quarter and for at least one complete to be managed in two seasons to ensure § 679.61. Fishery cooperatives no longer fishing trip targeting pollock, as defined temporal dispersion of harvest. This participate in the AI directed pollock under paragraph (c)(2)(i). Proposed proposed action would establish the A fishery. Paragraph (d)(3), now states that revisions to paragraph (c)(2)(i) would season as 1200 hours, A.l.t., January 20 inshore cooperatives that are applying ensure the AI directed pollock fishery through 1200 hours, A.l.t., June 10 and for an allocation of BSAI pollock must observer coverage is considered the B season as 1200 hours, A.l.t., June file their contracts by the December 1 separately from BS or GOA pollock 10 through 1200 hours, A.l.t., November deadline. Inshore cooperatives would fishery observer coverage requirements. 1. no longer be able to apply for an AI Catcher vessels in this size class pollock allocation pursuant to the § 679.28 Equipment and Operational participating in the AI directed pollock proposed rule. Paragraph (g) now Requirements fishery would have at least one of their prohibits cooperative members from The Council recommended that trips fully observed, ensuring NMFS participating in the BSAI directed pollock deliveries to a shoreside or receives sufficient information for pollock fishery if any landing taxes for stationary floating processor be monitoring activities in the AI directed the cooperative are overdue. Because prohibited unless the processor has a pollock fishery by catcher vessels in this the cooperatives are no longer able to catch monitoring control plan (CMCP). size class. participate in the AI directed pollock The CMCP explains how a processor Revisions to paragraph (c)(5) also fishery without the Aleut Corporation’s will meet the catch monitoring and would add catcher/processor and selection and NMFS’ approval, the control standards detailed in mothership observer requirements for prohibition on fishing in the AI directed § 679.28(g)(7). This proposed action the AI directed pollock fishery pollock fishery is outside the scope of would revise § 679.28(g)(2) to include equivalent to AFA requirements. The purpose for the formation of the the AI directed pollock fishery Council recommended that all catcher/ cooperative and would be shoreside processors and stationary processors and motherships inappropriate. The reference to landing floating processors with the processors participating in the AI directed pollock taxes in paragraph (g) would be required to have a CMCP. The CMCP fishery be required to meet the AFA corrected from paragraph (d)(1)(v) to would ensure that pollock processed for monitoring requirements, including paragraph (e)(1)(v). the Aleut Corporation would be vessels less than 60 ft. (18.3 m) LOA. accurately monitored and reported to This requirement would ensure accurate § 679.62 Inshore Sector Cooperative ensure effective management of the information is available on which to Allocation Program fishery. This proposed rule also would base management decisions for the AI Section 679.62 (a) now specifies that correct a typographical error in directed pollock fishery. The reference inshore cooperatives will receive a paragraph (g)(3) which references the to observer workload restrictions also portion of the AI directed pollock CMCP standards by revising the would be corrected from paragraph fishery allocation if the AI is open to reference in the paragraph from (g)(6), (c)(5)(iii) to paragraph (c)(5)(ii). directed pollock fishing. Because Pub. which applies to changing a CMCP, to Subpart F American Fisheries Act L. 108–199 provides for all of the AI (g)(7) which applies to the standards. Management Measures directed pollock fishery to be allocated to the Aleut Corporation, this proposed § 679.50 Groundfish Observer Program The title to Subpart F would be rule would remove the reference to the The Council recommended that revised to read ‘‘American Fisheries Act AI directed pollock fishery allocation to catcher vessels less than 60 feet (18.3 m) and Aleutian Islands Directed Pollock inshore cooperatives in the introductory LOA be required to accept a NMFS staff Fishery Management Measures.’’ paragraph to (a) and in paragraphs (a)(2) observer if one is designated by NMFS Because a number of AFA provisions and (a)(3). to observe on the vessel. An observer also apply to the AI directed pollock Paragraphs (b)(2) and (b)(3) now refer collects fishery information that can be fishery, sections of this subpart would to the harvest accrual against inshore used to manage harvest activities for a be revised to include the management cooperative quotas and the reporting of

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inshore cooperative harvest, including of the Magnuson-Stevens Act and other SBA small entity criteria at 13 CFR the AI directed pollock fishery. Because applicable laws. NMFS, in making that 121.201 provide a small entity threshold the AI directed pollock fishery is determination, will take into account for ‘‘Offices of Other Holding allocated to the Aleut Corporation, the the data, views, and comments received Companies’’ of $6 million. proposed rule would clarify the during the comment period. The vessels used to harvest the Aleut description of the inshore cooperative This proposed rule has been Corporation’s pollock allocation are allocation and reporting requirements determined to be not significant for the expected to ‘‘co-op’’ with the Aleut by removing references to the AI purposes of Executive Order 12866. Corporation because the latter is directed pollock fishery. The revision The Chief Counsel for Regulation of responsible for dispersing the also would remove the additional text ‘‘ the Department of Commerce certified component shares of the annual AI by a member vessel’’ in paragraph to the Chief Counsel for Advocacy of the pollock allocation to individual fishing (b)(2)(i) to provide more concise text for Small Business Administration (SBA) operations. All those vessels allocated a this requirement. that this proposed rule, if adopted, working share of the Aleut would not have a significant economic Corporation’s directed pollock fishery § 679.63 Catch Weighing Requirements impact on a substantial number of small are ‘‘affiliates’’ of the larger group and for Vessels and Processors entities. are not small entities for RFA purposes. Section 679.63(c) now requires Factual Basis for Certification As discussed in Appendix A.2 of the groundfish landed by an AFA catcher RIR (see ADDRESSES), small entities vessel in the BSAI pollock fishery at a Description and estimate of the affiliated with large entities are shoreside processor to be weighed and number of small entities to which the considered large entities for the purpose observed. In June 2004, the Council rule applies: Amendment 82 potentially of an SBA analysis. This means that recommended that the shoreside and affects the following classes of entities: entities which contract with the Aleut stationary floating processors receiving (1) the Aleut Corporation, (2) fishing Corporation to harvest or process its pollock from the AI directed pollock operations harvesting pollock in the AI allocation of AI pollock are large entities fishery be required to have a CMCP. The with the permission of the Aleut within the meaning of the RFA. Thus, AFA weighing and observer Corporation, (3) processors processing the vessels 60 feet (18.3 m) LOA or less, requirements for inshore processors AI pollock with permission of the Aleut the AFA vessels, and the processors that were not extended to the AI directed Corporation, (4) AFA pollock vessels fish and process this allocation on pollock fishery because the CMCP that may be affected by the Council’s behalf of the Aleut Corporation must be would provide the quality and quantity policy on funding the AI allocation or considered ‘‘affiliates,’’ and are not of information needed. The proposed which may be involved in fishing the AI small entities within the meaning of the rule would revise paragraph (c) to allocation under the terms of the Pub. L. RFA. remove references to the AI pollock 108–199, and (e) CDQ groups. The decisions related to allocation fishery. Section 803(a) of Pub. L. 108–199 size, monitoring, harvest limits for requires that effective January 1, 2004, vessels less than 60 feet (18.3 m) LOA, § 679.64 Harvesting Sideboard Limits in and thereafter, the directed fishery for recordkeeping and reporting, and Other Fisheries pollock in the AI subarea of the BSAI Chinook salmon bycatch limits and area The introductory text to paragraphs shall be allocated to the Aleut closures are only expected to directly (a) and (b) would be revised to clarify Corporation. Except with the permission regulate entities which would harvest or that the intent of the sideboards is to of the Aleut Corporation or its process the Aleut Corporation allocation protect against adverse effects from authorized agent, the fishing or of AI pollock. Because, as noted above, fishery cooperative in the BS directed processing of any part of such allocation these entities are affiliated with the pollock fishery. Paragraphs (a)(1)(i) and shall be prohibited by Section 307 of the Aleut Corporation, they are all (b)(3) would be revised to exempt AI Magnuson-Stevens Fishery considered large within the meaning of pollock from AFA groundfish sideboard Conservation and Management Act. the RFA. provisions. The citation in paragraphs For the purposes of the Regulatory Amendment 82 would establish a (a)(2)(ii) would be corrected from Flexibility Act (RFA), the Aleut policy under which the AI pollock (a)(1)(ii)(A) to (a)(2)(i). Paragraph (a)(4) Corporation is best characterized as a allocation is ‘‘funded’’ in order that it be would be revised to correct the citation holding company. A holding company contained under the 2 million mt total ‘‘(a)(1)(i) through (a)(1)(iii)’’ to ‘‘(a)(1)(ii) is a company that usually confines its BSAI groundfish OY. This action would through (a)(3).’’ The citation in activities to owning stock in and not actually reapportion the various paragraph (a)(4)(ii) also would be supervising management of other pollock allocations to fund AI pollock. corrected from (a)(1)(iv) to (a)(4)(i). companies. A holding company usually It simply would establish the process by owns a controlling interest in the which subsequent action in the harvest § 679.65 Crab Processing Sideboard companies whose stock it holds. The specifications process would apportion Limits Aleut Corporation carries out most of its the 2 million ton OY. If the sum of the Because the crab processing sideboard significant activities through a variety of TACs in the BSAI were less than the 2 limits are applicable to AFA mothership other companies whose stock it holds. million mt OY, the funding of the AI and inshore processors that receive These include the Aleut Enterprise pollock allocation would take place, to pollock from the BS directed pollock Corporation, the Adak Reuse the maximum extent possible, from the fishery, paragraphs (a) and (b) would be Corporation, SMI International difference between the sum of the TACs revised to specify the BS directed Corporation, Tekstar, Inc., Akima and the OY. In this situation, the pollock fishery. Corporation, Aleut Real Estate L..L.C., funding would not come at the expense and the Alaska Trust Company. of other fleet segments. Alternatively, if Classification As a holding company, the Aleut the sum of the TACs were equal to the At this time, NMFS has not Corporation is not a small entity under 2 million mt OY, the funding would determined that the FMP amendment the SBA criteria. Aleut Corporation come from the BSAI pollock TAC. CDQ that this rule would implement is revenues ranged from about $72 million reserves would be taken from each TAC consistent with the national standards in 2001 to about $49 million in 2003. established from the AI and BS subarea

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pollock fisheries, and therefore, would percent of the pollock TAC in the BSAI. This proposed rule contains not contribute to the funding of the AI The CDQ groups are private, non-profit, collection-of-information requirements pollock TAC. The entire funding would entities, and are small entities within subject to the PRA and which has been come from a reduced TAC accruing to the meaning of the RFA. In June 2004, approved by OMB. Public reporting the AFA pollock fishing fleet in the BS. the Council explicitly excused the CDQ burden for these requirements are listed The AI pollock proposed action groups from contributing to the funding by OMB control number. establishes the process which would be of the Aleut Corporation allocation. In followed by the Council and NMFS October 2004, the Council clarified its OMB control No. 0648–0206 when setting the species/fishery TACs, intent that the Aleut Corporation, as one Federal fisheries permit application, at which time all attributable impacts to of the users of the BSAI pollock, was 21 minutes; Federal processor permit small entities will be assessed, as expected to contribute 10 percent of its application, 21 minutes. required by RFA. The potential direct AI allocation to the CDQ groups. effects on small entities attributable to Consistent with the Council’s intent, OMB control No. 0648–0213 funding the AI pollock allocation would the current regulations governing the Weekly production reports, 17 be evaluated during the harvest allocation of pollock to CDQ groups minutes; check-in/check-out report, specifications process, an action which would not be revised under this action. shoreside processor, 8 minutes; check- always includes an initial regulatory Under current regulations, the CDQ in/check-out report, mothership or flexibility analysis. This is appropriate groups receive 10 percent of any TAC catcher/processor, 7 minutes; daily because it is not until the annual specified in the AI and must fish their production report, 11 minutes; buying specifications are proposed that any allocation there unless the Regional station report, 23 minutes; catcher impacts may actually be identified (i.e., Administrator reallocates the unused vessel trawl gear daily fishing logbook OY allocated to TACs). portion to the BS CDQ pollock directed (DFL), 18 minutes; catcher vessel To illustrate the point, note that in fishing allowance. The CDQ groups longline or pot gear DFL, 28 minutes; any year the AI directed pollock fishery would have been required to fish their shoreside processor daily cumulative allocation may be set at zero, or any AI pollock directed fishing allowance in production logbook (DCPL), 31 minutes; number above zero up to the TAC limit the AI if the Council had chosen, as it mothership DCPL, 31 minutes; catcher/ proposed under this action. If it is zero, could have, to establish a directed processor longline and pot gear DCPL, no TAC would be reallocated from other fishery in the AI in 2003 and 2004. This 41 minutes; and catcher/processor trawl fisheries, and clearly no significant would be the case if Section 803 had not gear DCPL, 30 minutes. effects on a substantial number of small been included in Pub. L. 108–199 and entities would occur. If the AI directed the Council had chosen to create a OMB control No. 0648–0330 pollock fishery allocation is very small pollock TAC in the AI in 2005 or in a Inshore processor catch monitoring (i.e., 100 mt), ‘‘no significant adverse future year. CDQ groups will receive a and control plan, 40 hours. impacts’’ would occur. This logic part of their CDQ allocation in the AI OMB control No. 0648–0334 extends continuously until some, as yet and their BS CDQ allocation will be undefined, point at which an amount of reduced by a corresponding amount. LLP permit, 1 hour. AI directed allocation is large enough to The potential advantages and OMB control No. 0648–0393 create a ‘‘significant adverse impact’’ disadvantages of this to the CDQ groups (unless the funding source is BS were described in the RIR (Section 7.7) AFA inshore processor permit pollock, wherein no small entities (see ADDRESSES). application, 2 hours; AFA catcher vessel exist). However, it is the specification of The CDQ groups will not be directly permit application, 2 hours; AFA all the annual TACs (AI pollock and its regulated by the Amendment 82 or by mothership, 2 hours; and AFA catcher/ funding sources), and not the the changes in the regulations processor permit application, 0 hours. mechanism for specification, which will associated with it. The CDQ groups may OMB control No. 0648–0401 result in those impacts, and which may be affected by the Council’s decisions require an analysis which would relating to TACs. These impacts will be Catcher vessel cooperative pollock identify the likely number, distribution, described in the IRFA that is prepared catch report, 5 minutes; shoreside and attributes of the entities impacted. each year to accompany the annual processor electronic logbook report, 35 Moreover, the allocation is funded harvest specifications. minutes. from either an unallocated portion of Because this proposed rule has no Response times include the time for the OY or from the allocation by a significant economic impacts on a reviewing instructions, searching reduction in the TAC available for substantial number of small entities, an existing data sources, gathering and harvest by the AFA pollock fleet in the initial regulatory flexibility analysis is maintaining the data needed, and BS. The vessels in the AFA pollock fleet not required and none has been completing and reviewing the are either affiliated with processors or prepared. collection-of-information. fishing cooperatives. In all instances, This proposed rule contains Public comment is sought regarding: the affiliated entities have gross collection-of-information requirements whether this proposed collection-of- revenues exceeding the $3.5 million subject to review and approval by the information is necessary for the proper threshold separating small and large Office of Management and Budget performance of the functions of the entities. Thus, the proposed action (OMB) under the Paperwork Reduction agency, including whether the would only affect large entities. Act (PRA). These requirements and information shall have practical utility; Six CDQ groups harvest pollock in the estimated reporting burdens have been the accuracy of the burden estimate; BSAI. CDQ groups represent Western submitted to OMB for approval: list of ways to enhance the quality, utility, and Alaska communities and are given participating harvesters and processors clarity of the information to be allocations of the annual pollock TAC to in the AI pollock fishery, 16 hours; collected; and ways to minimize the use for the purpose of fisheries related appeals of NMFS’ disapproval as burden of the collection-of-information, economic development to benefit these participating harvester or processor, 8 including through the use of automated communities. Under the terms of the hours, and AI directed pollock fishery collection techniques or other forms of AFA, these entities are entitled to 10 catch reporting, 4 hours. information technology. Send comments

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on these or any other aspects of the PART 679—FISHERIES OF THE AFA entity means a group of affiliated collection-of-information to NMFS EXCLUSIVE ECONOMIC ZONE OFF individuals, corporations, or other Alaska Region (see ADDRESSES), and e- ALASKA business concerns that harvest or mail to [email protected], process pollock in the BS directed or fax to 202- 395–7285. 1. The authority citation for part 679 pollock fishery. continues to read as follows: Notwithstanding any other provision AFA inshore processor means a of the law, no person is required to Authority: 16 U.S.C. 773 et seq., 1801 et shoreside processor or stationary respond to, and no person shall be seq., and 3631 et seq.; 16 U.S.C. 1540(f); Pub. floating processor permitted to process subject to a penalty for failure to comply L. 105–277, Title II of Division C; Pub L. 106– BS pollock under § 679.4(l)(5). 31, Sec. 3027; Pub. L.106–554, Sec. 209; and AFA mothership means a mothership with, a collection of information subject Pub. L. 108–199, Sec. 803. to the requirements of the PRA, unless permitted to process BS pollock under 2. In § 679.1, paragraph (k) is revised § 679.4(l)(5). that collection-of-information displays a to read as follows: currently valid OMB Control Number. * * * * * Informal consultation under the ESA § 679.1 Purpose and scope. AI directed pollock fishery means was concluded for Amendment 82 on * * * * * directed fishing for pollock in the AI October 22, 2004. As a result of the (k) American Fisheries Act and AI under the allocation to the Aleut informal consultation, the Regional directed pollock fishery measures. Corporation authorized at Administrator determined that fishing Regulations in this part were developed § 679.20(a)(5)(iii). activities under this rule are not likely by NMFS and the Council under the * * * * * to adversely affect endangered or Magnuson-Stevens Act, the American Aleut Corporation means the Aleut threatened species or their critical Fisheries Act (AFA), and Pub. L. 108– Corporation incorporated pursuant to habitat. Pollock is an important prey 199 to govern commercial fishing for the Alaska Native Claims Settlement Act species for the endangered and BSAI pollock according to the (43 U.S.C. 1601 et seq.). threatened Steller sea lion populations. requirements of the AFA and Pub. L. Aleut Corporation entity means a The Steller sea lion protection measures 108–199. This part also governs harvester or processor selected by the evaluated in the 2000 and 2001 payment and collection of the loan, Aleut Corporation and approved by Biological Opinions (see ADDRESSES) under the AFA, the Magnuson-Stevens NMFS to harvest or process pollock in were considered in the development of Act, and Title XI of the Merchant the AI directed pollock fishery. the management provisions of Marine Act, 1936, made to all those * * * * * Amendment 82. The protection persons who harvest pollock from the Designated contact for the Aleut measures for Steller sea lions include directed fishing allowance allocated to Corporation means an individual who is spatial and temporal dispersion of the inshore component under section designated by the Aleut Corporation for pollock harvest. The pollock fishing 206(b)(1) of the AFA. the purpose of communication with closure areas in the AI would remain 3. In § 679.2, the definitions for ‘‘AFA NMFS regarding the identity of selected unchanged under Amendment 82 to catcher/processor,’’ ‘‘AFA catcher AI directed pollock fishery participants ensure spatial dispersion of fishing vessel,’’ ‘‘AFA crab processing facility,’’ and weekly reports required by § 679.5. effort. To temporally disperse harvest of ‘‘AFA entity,’’ ‘‘AFA inshore * * * * * prey species, the Steller sea lion processor,’’ ‘‘AFA mothership,’’ Designated primary processor means protection measures apportion 40 ‘‘designated primary processor,’’ an AFA inshore processor that is percent of pollock harvest in the BSAI ‘‘fishery cooperatives or cooperatives,’’ designated by an inshore pollock to the A season and 60 percent to the ‘‘license limitation groundfish,’’ ‘‘listed cooperative as the AFA inshore B season. Amendment 82 would AFA catcher/processor,’’ and ‘‘unlisted processor to which the cooperative will continue to temporally disperse pollock AFA catcher/processor,’’ are revised, deliver at least 90 percent of its BS harvest with no more than 40 percent of and the definitions for ‘‘AI directed pollock allocation during the year in the ABC permitted to be harvested in pollock fishery,’’ ‘‘Aleut Corporation,’’ which the AFA inshore cooperative the A season. The total harvest of ‘‘Aleut Corporation entity,’’ and fishing permit is in effect. pollock in the Bering Sea subarea, ‘‘designated contact for the Aleut including any reallocation of Corporation’’ are added in alphabetical * * * * * unharvested AI pollock, also would order to read as follows: Fishery cooperative or cooperatives remain well below the ABC so that means any entity cooperatively overall harvest would be in proportion § 679.2 Definitions. managing directed fishing for BS to biomass and less likely to compete * * * * * pollock and formed under section 1 of with Steller sea lions for prey. Both of AFA catcher/processor means a the Fisherman’s Collective Marketing these harvest provisions satisfy the catcher/processor permitted to harvest Act of 1934 (15 U.S.C. 521). In and of intent of the Steller sea lion protection BS pollock under § 679.4(l)(2). itself, a cooperative is not an AFA entity measures. AFA catcher vessel means a catcher subject to excessive harvest share vessel permitted to harvest BS pollock limitations, unless a single person, List of Subjects in 50 CFR Part 679 under § 679.4(l)(3). corporation or other business entity controls the cooperative and the Alaska, Fisheries, Recordkeeping and AFA crab processing facility means a cooperative has the power to control the reporting requirements. processing plant, catcher/ processor, mothership, floating processor or any fishing activity of its member vessels. Dated: December 1, 2004. other operation that processes any FMP * * * * * William T. Hogarth, species of BSAI crab, and that is License limitation groundfish means Assistant Administrator for Fisheries, affiliated with an AFA entity that target species and the ‘‘other species’’ National Marine Fisheries Service. processes pollock harvested by a catcher category, specified annually pursuant to For reasons set out in the preamble, vessel cooperative operating in the § 679.20(a)(2), except that demersal 50 CFR part 679 is proposed to be inshore or mothership sectors of the BS shelf rockfish east of 140§ W. longitude, amended as follows: pollock fishery. sablefish managed under the IFQ

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program, and pollock allocated to the (B) Stationary floating processors. A fishery or to process pollock taken in Aleutian Islands directed pollock location within Alaska state waters that the AI directed pollock fishery. fishery and harvested by vessels 60 feet is within 5 nm of the position in which (2) Annual Selection of participants (18.3 m) LOA or less, are not considered the stationary floating processor first by the Aleut Corporation. Each year and license limitation groundfish. processed pollock harvested in the BS at least 14 days before harvesting * * * * * subarea directed pollock fishery during pollock in the AI directed pollock Listed AFA catcher/processor means a fishing year. fishery or processing pollock harvested an AFA catcher/processor permitted to * * * * * in the AI directed pollock fishery, a harvest BS pollock under § 679.4(l)(2)(i). (6) * * * participant must be selected by the * * * * * (ii) * * * Aleut Corporation and the following Unlisted AFA catcher/processor (B) Designated cooperative processor. information for each participant must be means an AFA catcher/processor The name and physical location of an submitted by the designated contact to permitted to harvest BS pollock under AFA inshore processor that is the Regional Administrator: (i) Vessel or processor name; § 679.4(l)(2)(ii). designated in the cooperative contract (ii) Federal fisheries permits number as the processor to whom the * * * * * issued under § 679.4(b) or Federal cooperative has agreed to deliver at least 4. In § 679.4, paragraphs (l)(1)(i), processor permit issued under 90 percent of its BS pollock catch; (l)(5)(iii), (l)(6)(ii)(B), (l)(6)(ii)(C)(2), § 679.4(f); (l)(6)(ii)(D)(1)(ii), (l)(6)(ii)(D)(2)(i) and (C) * * * (iii) an approved catch monitoring (l)(6)(ii)(D)(2)(ii) are revised and (2) The cooperative contract requires control plan for shoreside and stationary paragraph (m) is added to read as that the cooperative deliver at least 90 floating processors, as required by follows: percent of its BS pollock catch to its 679.28(g)(2); and designated AFA processor; and § 679.4 Permits. (iv) the fishing year which * * * * * participation approval is requested. * * * * * (D) * * * (3) Participant Approval. (i) (l) * * * (1) * * * Participants must have: (1) * * * (ii) LLP permit. The vessel must be (A) a valid Federal fisheries permit or (i) Applicability. In addition to any Federal processing permit, pursuant to other permit and licensing requirements named on a valid LLP permit authorizing the vessel to engage in paragraphs (b) and (f) of this section, set out in this part, any vessel used to respectively; engage in directed fishing for a non- trawling for pollock in the Bering Sea subarea. If the vessel is more than 60 (B) a valid fishery endorsement on the CDQ allocation of pollock in the BS and vessel’s U.S. Coast Guard any shoreside processor, stationary feet (18.3 m) LOA, the vessel must be named on a valid LLP permit to engage documentation for the vessel’s floating processor, or mothership that participation in the U. S. fishery; and receives pollock harvested in a non- in trawling for pollock in the AI; and * * * * * (C) a valid AFA permit under CDQ directed pollock fishery in the BS § 679.4(l)(2) for all catcher/processors, (2) * * * must have a valid AFA permit onboard (l)(3) for all catcher vessels greater than (i) Active vessels. The vessel delivered the vessel or at the facility location at all 60 ft (18.3 m) LOA, or (l)(4) for all more pollock harvested in the BS times while non-CDQ pollock is being motherships. harvested or processed. In addition, the inshore directed pollock fishery to the (ii) Each participant selected by the owner of any vessel that is a member of AFA inshore processor designated Aleut Corporation and that meets the a pollock cooperative in the BS must under paragraph (l)(6)(ii)(B) of this conditions under paragraph (m)(3)(i) of also have a valid AFA permit for every section than to any other shoreside this section will be approved by the vessel that is a member of the processor or stationary floating Regional Administrator for participation cooperative, regardless of whether or processor during the year prior to the in the AI directed pollock fishery. not the vessel actually engages in year in which the cooperative fishing (iii) The Regional Administrator will directed fishing for pollock in the BS. permit will be in effect; or provide to the designated contact for the Finally, an AFA permit does not exempt (ii) Inactive vessels. The vessel Aleut Corporation the identity of each a vessel operator, vessel, or processor delivered more pollock harvested in the approved participant and the date upon from any other applicable permit or BS inshore directed pollock fishery to which participation in the AI directed licensing requirement required under the AFA inshore processor designated pollock fishery may commence. The this part or in other state or Federal under paragraph (l)(6)(ii)(B) of this Aleut Corporation shall forward to the regulations. section than to any other shoreside approved participants a copy of NMFS’s * * * * * processor or stationary floating approval letter before harvesting or (5) * * * processor during the last year in which processing occurs. (iii) Single geographic location the vessel delivered BS pollock (iv) A copy of NMFS’ approval letter requirement. An AFA inshore processor harvested in the BS directed pollock for participating in the AI directed permit authorizes the processing of fishery to an AFA inshore processor. pollock fishery during the fishing year pollock harvested in the BS directed * * * * * must be on site at the shoreside pollock fishery only in a single (m) Participation in the AI Directed processor or stationary floating geographic location during a fishing Pollock Fishery—(1) Applicability. processor, or on board the vessel at all year. For the purpose of this paragraph, Harvesting pollock in the AI directed times and must be presented for single geographic location means: pollock fishery and processing pollock inspection upon the request of any (A) Shoreside processors. The taken in the AI directed pollock fishery authorized officer. physical location at which the land- is authorized only for those harvesters (4) Participant Disapproval—(i) based shoreside processor first and processors that are selected by the Notification. The Regional processed pollock harvested from the Aleut Corporation and approved by the Administrator shall disapprove any BS subarea directed pollock fishery Regional Administrator to harvest participant that does not meet the during a fishing year. pollock in the AI directed pollock conditions under paragraph (m)(3)(i) of

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this section. The Regional Administrator applicant of his or her 30-day § 679.5 Recordkeeping and reporting will notify in writing the Aleut evidentiary period. The IAD will (R&R). Corporation and the selected participant indicate the deficiencies in the (a) * * * of the disapproval. The selected information required, including the (7) * * * participant will have 30 days in which evidence submitted in support of the (xv) * * * to submit proof of meeting the information. The IAD also will indicate requirements to participate in the AI If har- which claims cannot be approved based vest directed pollock fishery. on the available information or made Indicate yes and Reference (ii) Initial administrative evidence. A participant who receives an under record the ... determinations (IAD). The Regional IAD may appeal under the appeals ... pro- gram Administrator will prepare and send an procedures set out at § 679.43. A IAD to the selected participant participant who avails himself or herself * * * * * following the expiration of the 30-day of the opportunity to appeal an IAD will evidentiary period if the Regional receive an interim approval from NMFS (F) AIP n/a Subpart F to Administrator determines that the authorizing participation in the AI part 679 information or evidence provided by the directed pollock fishery. An interim selected participant fails to support the approval based on claims contrary to the * * * * * (h) * * * participant’s claims and is insufficient final determination will expire upon to rebut the presumption that the (1) * * * final agency determination. disapproval for participation in the AI (i) Check-in report (BEGIN message). directed pollock fishery is correct or if 5. In § 679.5, paragraphs (a)(7)(xv)(F), Except as indicated in paragraph the additional information or evidence (h)(1)(i), (h)(1)(ii)(I), and (q) are added to (h)(1)(iii) of this section, the operator or is not provided within the time period read as follows: manager must submit a check-in report specified in the letter that notifies the according to the following table:

Submit a separate BEGIN message for ... If you are a ... Within this time limit

(A) Each reporting area (1) C/P using trawl gear Before gear deployment of groundfish harvest, except 300, 400, 550, or 690

(2) C/P using longline or pot Before gear deployment. May be checked in to more than one area simulta- gear neously.

(3) MS, SS, SFP Before receiving groundfish. May be checked in to more than one area simulta- neously.

(4) MS Must check-in to reporting area(s) where groundfish were harvested.

(B) COBLZ or RKCSA (1) C/P using trawl gear Prior to fishing. Submit one check-in for the COBLZ or RKCSA and another check-in for the area outside the COBLZ or RKCSA.

(2) MS, SS, SFP Before receiving groundfish harvested with trawl gear, submit one check-in for the COBLZ or RKCSA and another check-in for the area outside the COBLZ or RKCSA.

(C) Gear Type (1) C/P If in the same reporting area but using more than one gear type, prior to fishing submit a separate check-in for each gear type.

(2) MS, SS, SFP If harvested in the same reporting area but using more than one gear type, prior to receiving groundfish submit a separate check-in for each gear type.

(D) CDQ (1) C/P Prior to groundfish CDQ fishing under each CDQ program.

(2) MS, SS, SFP Prior to receiving groundfish CDQ. If receiving groundfish under more than one CDQ number, use a separate check-in for each number.

(E) Exempted or Re- (1) C/P If in an exempted or research fishery, prior to fishing submit a separate check-in search Fishery for each type.

(2) MS, SS, SFP If receiving groundfish from an exempted or research fishery, prior to receiving submit a separate check-in for each type.

(F) Processor Type C/P, MS If a catcher/processor and functioning simultaneously as a mothership in the same reporting area, before functioning as either processor type.

(G) Change of fishing C/P, MS, SS, SFP If continually active through the end of one fishing year and at the beginning of a year second fishing year, submit a check-in for each reporting area to start the year on January 1.

(H) AIP (1) C/P Prior to AI pollock fishing.

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Submit a separate BEGIN message for ... If you are a ... Within this time limit

(2) MS, SS, SFP Before receiving AI pollock

(ii) * * * amount of pollock (in lb for shoreside catcher vessel permit on board that and stationary floating processors and in includes an endorsement for the sector Submit mt for motherships) delivered, of the BS pollock fishery in which the a sepa- including the weight of at-sea pollock vessel is participating. rate If you are a Within this time discards; and * * * * * CEASE ... limit mes- (B) For catcher/processors, the (5) AFA inshore fishery sage amount of pollock (in mt) harvested and for . . . cooperatives—(i) Overages by vessel. processed, including the weight of at- Use an AFA catcher vessel listed on an * * * * * sea pollock discards; and AFA inshore cooperative fishing permit, (v) ADF&G fish ticket number. or under contract to a fishery (I) AIP (1) C/P Within 24 hours 6. In § 679.7, paragraphs (k)(3)(i), cooperative under § 679.62(c), to harvest after completion of (k)(3)(iii), (k)(3)(iv), (k)(4)(i), (k)(5), non-CDQ BS pollock in excess of the gear retrieval for (k)(6), and (k)(7) are revised, and fishery cooperative’s annual allocation AI pollock. paragraph (l) is added to read as follows: of pollock specified under § 679.62. (2) SS, SFP Within 48 hours § 679.7 Prohibitions. (ii) Overages by fishery cooperative. after the end of * * * * * An inshore pollock fishery cooperative the applicable (k) * * * is prohibited from exceeding its annual weekly reporting (3) * * * allocation of BS pollock TAC. period that a (6) Excessive harvesting shares. It is shoreside proc- (i) Permit requirement. Use a essor or SFP shoreside processor or stationary unlawful for an AFA entity to harvest, ceases to receive floating processor to process pollock through a fishery cooperative or or process AI pol- harvested in a non-CDQ directed fishery otherwise, an amount of BS pollock that lock for the fishing for pollock in the BS without a valid exceeds the 17.5–percent excessive year. AFA inshore processor permit at the share limit specified under facility or on board vessel. § 679.20(a)(5)(i)(A)(6). The owners and (3) MS Within 24 hours operators of the individual vessels after receipt of AIP * * * * * (iii) Restricted AFA inshore comprising the AFA entity that harvests pollock has BS pollock will be held jointly and ceased. processors. Use an AFA inshore processor holding a restricted AFA severally liable for exceeding the * * * * * inshore processor permit to process excessive harvesting share limit. (q) AI directed pollock fishery catch more than 2,000 mt round weight of (7) Excessive processing shares. It is reports—(1) Applicability. The Aleut non-CDQ pollock harvested in the BS unlawful for an AFA entity to process Corporation shall provide NMFS the directed pollock fishery in any one an amount of BS pollock that exceeds identity of its designated contact for the calendar year. the 30–percent excessive share limit Aleut Corporation. The Aleut (iv) Single geographic location specified under § 679.20(a)(5)(i)(A)(7). Corporation shall submit to the Regional requirement. Use an AFA inshore The owners and operators of the Administrator a pollock catch report processor to process pollock harvested individual processors comprising the containing information required by in the BS directed pollock fishery at a AFA entity that processes BS pollock paragraph (q)(3) of this section. location other than the single will be held jointly and severally liable (2) Time limits and submittal. (i) The geographic location defined as follows: for exceeding the excessive processing Aleut Corporation must submit its AI (A) Shoreside processors. The share limit. directed pollock fishery catch reports by physical location at which the land- * * * * * one of the following methods: based shoreside processor first (l) Prohibitions specific to the AI (A) An electronic data file in a format processed BS pollock harvested in the directed pollock fishery—(1) Catcher/ approved by NMFS; or BS directed pollock fishery during a Processors. (i) Use a catcher/processor (B) By Fax. fishing year. vessel to harvest pollock in the AI (ii) The AI directed pollock fishery (B) Stationary floating processors. A directed pollock fishery or process catch reports must be received by the location within Alaska State waters that pollock harvested in the AI directed Regional Administrator by 1200 hours, is within 5 nm of the position in which pollock fishery without a copy of A.l.t. on Tuesday following the end of the stationary floating processor first NMFS’ approval letter pursuant to the applicable weekly reporting period, processed BS pollock harvested in the § 679.4(m). as defined at § 679.2. BS directed pollock fishery during a (3) Information required. The AI (ii) Process any pollock harvested in fishing year. directed pollock fishery catch report the AI directed pollock fishery without must contain the following information: * * * * * complying with catch weighing and (i) Catcher vessel ADF&G number; (4) * * * observer sampling station requirements (ii) Federal fisheries or Federal (i) Permit requirement. Use a catcher set forth at paragraphs (k)(1)(vi) and processor permit number; vessel to engage in directed fishing for (k)(1)(vii) of this section, respectively. (iii) Delivery date; non-CDQ BS pollock for delivery to any (iii) Use a catcher/processor to harvest (iv) Pollock harvested: AFA processing sector (catcher/ pollock in the AI directed pollock (A) For shoreside and stationary processor, mothership, or inshore) fishery or process pollock harvested in floating processors and motherships: unless the vessel has a valid AFA the AI directed pollock fishery without

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a valid AFA catcher/processor permit catcher vessel selected by the Aleut (1) AI annual TAC limitations. When on board the vessel. Corporation and approved by NMFS to the AI pollock ABC is less than 19,000 (2) Motherships. (i) Use a mothership participate in the AI directed pollock mt, the annual TAC will be no greater to process pollock harvested in the AI fishery under § 679.4(m) to harvest than the ABC. When the AI pollock ABC directed pollock fishery without a copy pollock in the AI directed pollock equals or exceeds 19,000 mt, the annual of NMFS’ approval letter pursuant to fishery in excess of the Aleut TAC will be equal to 19,000 mt. § 679.4(m). Corporation’s annual or seasonal (2) Allocations—(i) CDQ Directed (ii) Process any pollock harvested in allocations of pollock or in excess of the fishing allowance. 10 percent of the the AI directed pollock fishery without vessel allocation specified under annual TAC will be allocated to the complying with catch weighing and § 679.20(a)(5)(iii). CDQ pollock reserve established under observer sampling station requirements (ii) Overages by the Aleut § 679.31(a)(2). set forth at paragraphs (k)(2)(iii) and Corporation. The Aleut Corporation is (ii) Incidental catch allowance. The (k)(2)(iv) of this section, respectively. prohibited from exceeding its annual Regional Administrator will determine (iii) Use a mothership to process and seasonal allocations of AI pollock the amount of the pollock incidental pollock harvested in the AI directed TAC or from exceeding the allocation to catch necessary to support an incidental pollock fishery without a valid AFA vessels, as specified in catch allowance in the AI during the mothership permit on board the vessel. § 679.20(a)(5)(iii). fishing year. This amount of pollock (3) Shoreside and stationary floating 7. In § 679.20, paragraph (a)(5)(iii) is will be deducted from the annual TAC. processors. (i) Use a shoreside processor redesignated as paragraph (a)(5)(iv), (iii) Directed Pollock Fishery. The amount of the TAC remaining after or stationary floating processor to paragraphs (a)(5)(i)(B)(1), (a)(5)(ii), subtraction of the CDQ directed fishing process pollock harvested in the in AI newly redesignated paragraph allowance and the incidental catch directed pollock fishery without a copy (a)(5)(iv)(B) introductory text, and allowance will be allocated to the Aleut of NMFS’ approval letter pursuant to paragraph (a)(6)(i) are revised, and Corporation as a directed pollock § 679.4(m). paragraph (a)(5)(iii) is added to read as fishery allocation. (ii) Process any pollock harvested in follows: the AI directed pollock fishery without (3) Seasonal apportionment. The complying with catch weighing § 679.20 General limitations. seasonal harvest of pollock in the AI requirements set forth at paragraph (a) * * * directed pollock fishery shall be: (i) A season. No greater than the lesser (k)(3)(v) of this section. (5) * * * of the annual initial TAC plus any A (iii) Take deliveries of pollock (i) * * * season CDQ pollock directed fishery harvested in the AI directed pollock (B) BSAI seasonal allowances for AFA allowance or 40 percent of the AI fishery or process pollock harvested in and CDQ—(1) Inshore, catcher/ pollock ABC. The total A season the AI pollock fishery without following processor, mothership, and CDQ apportionment, including the AI an approved CMCP as described in components. The portions of the BS directed pollock fishery allocation, the § 679.28(g). A copy of the CMCP must subarea pollock directed fishing CDQ pollock directed fishery seasonal be maintained on the premises and allowances allocated to each component allowance, and the incidental catch made available to authorized officers or under sections 206(a) and 206(b) of the amount, shall not exceed 40 percent of NMFS-authorized personnel upon AFA and the CDQ allowance in the the ABC. request. BSAI will be divided into two seasonal (4) Catcher vessels. (i) Use a catcher (ii) B season. The B season allowances corresponding to the two apportionment of the AI directed vessel to harvest pollock in the AI fishing seasons set out at § 679.23(e)(2), directed pollock fishery without a copy pollock fishery shall equal the annual as follows: A season, 40 percent; and B initial TAC minus the A season directed of NMFS’ approval letter pursuant to season, 60 percent. § 679.4(m). pollock fishery apportionment under (ii) Have on board at any one time * * * * * paragraph (a)(5)(iii)(B)(3)(i) of this pollock harvested in the AI directed (ii) Bogoslof District. If the Bogoslof section and minus the incidental catch pollock fishery and pollock harvested District is open to directed fishing for amount under this paragraph. from either the Bering Sea subarea or pollock by regulation, then the pollock (iii) Inseason adjustments. During any the Gulf of Alaska. TAC for this district will be allocated fishing year, the Regional Administrator (iii) Use a catcher vessel to deliver according to the same procedure may add any under harvest of the A pollock harvested in the AI directed established for the Bering Sea subarea at season directed pollock fishery pollock fishery: paragraph (a)(5)(i) of this section. If the apportionment to the B season directed (A) To a shoreside or stationary Bogoslof District is closed to directed pollock fishery apportionment by floating processor that does not have an fishing for pollock by regulation, then publication in the Federal Register if approved CMCP pursuant to § 679.28(g) the entire TAC for this district will be the Regional Administrator determines and is not approved by NMFS to process allocated as an incidental catch that the harvest capacity in the B season pollock harvested in the AI directed allowance. is sufficient to harvest the adjusted B pollock fishery, or (iii) AI. (A) If a directed fishery for season apportionment. (B) To a catcher/processor or pollock in the AI is not specified under (4) Reallocation of the annual AI mothership that is not approved by paragraph (c) of this section, then the directed pollock fishery and AI CDQ NMFS to process pollock harvested in entire TAC for this subarea will be allocations. As soon as practicable, if the AI directed pollock fishery. allocated as an incidental catch the Regional Administrator determines (vi) Use a catcher vessel greater than allowance. that vessels participating in either the 60 ft (18.3 m) LOA to harvest pollock in (B) If the AI is open to directed fishing AI directed pollock fishery or the AI the AI directed pollock fishery unless for pollock under paragraph (c) of this CDQ directed pollock fishery likely will the vessel has a valid AFA catcher section, then the pollock TAC for this not harvest the entire AI directed vessel permit on board. subarea will be specified, allocated, pollock fishery or CDQ pollock directed (5) AI directed pollock fishery seasonally apportioned, and reallocated fishing allowance, the Regional overages—(i) Overages by vessel. Use a as follows: Administrator may reallocate some or

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all of the projected unused directed Chinook salmon caught while fishing for pollock in the AI directed pollock fishery allocation to the Bering harvesting pollock in the AI between pollock fishery, or directed fishing for Sea subarea directed pollock fishery or January 1 and December 31 is attained. CDQ pollock in the BSAI is authorized AI CDQ pollock directed fishing * * * * * only during the following two seasons: allowance to the Bering Sea subarea (7) * * * (i) A season. From 1200 hours, A.l.t., CDQ pollock directed fishing allowance (viii) Chinook salmon. If, during the January 20 through 1200 hours, A.l.t., by publication in the Federal Register. fishing year, the Regional Administrator June 10; and (5) Allocations to small vessels. The determines that catch of Chinook (ii) B season. From 1200 hours, A.l.t., annual allocation for vessels 60 feet salmon by vessels using trawl gear June 10 through 1200 hours, A.l.t., (18.3 m) LOA or less participating in the while directed fishing for pollock in the November 1. AI directed pollock fishery will be: BSAI will reach the annual limits, as * * * * * (i) No more than 25 percent of the AI identified in paragraphs (e)(1)(vii) and 10. In § 679.28, paragraph (g)(2) and directed pollock fishery allocation (e)(1)(ix) of this section, NMFS, by the first sentence of paragraph (g)(3) are through 2008; notification in the Federal Register will revised to read as follows: (ii) No more than 50 percent of the AI close the Chinook Salmon Savings directed pollock fishery allocation from § 679.28 Equipment and operational Areas, as defined in Figure 8 to this requirements. 2009 through 2012; and part, to directed fishing for pollock with (iii) 50 percent of the AI directed * * * * * trawl gear as follows: pollock fishery allocation in 2013 and (g) * * * (A) For the BS Chinook salmon PSC beyond. (2) Who is required to prepare and limit under paragraph (e)(1)(vii) of this (iv) * * * submit a CMCP for approval? The (B) GOA Western and Central section, area 1 and area 2 in Figure 8 to owner and manager of an AFA inshore Regulatory Areas seasonal this part will be closed on the following processor or the owner and manager of apportionments. Each apportionment dates: a shoreside or stationary floating established under paragraph (1) From the effective date of the processor processing pollock harvested (a)(5)(iv)(A) of this section will be closure until April 15, and from in the AI directed pollock fishery are divided into four seasonal September 1 through December 31, if required to prepare and submit a CMCP apportionments corresponding to the the Regional Administrator determines which must be approved by NMFS prior four fishing seasons specified in that the annual limit of BS Chinook to the receipt of pollock harvested in the § 679.23(d)(2) as follows: * * * salmon will be attained before April 15. BSAI directed pollock fishery. (6) * * * (2) From September 1 through (3) How is a CMCP approved by (i) The apportionment of pollock in December 31, if the Regional NMFS? NMFS will approve a CMCP if all GOA regulatory areas for each Administrator determines that the it meets all the requirements specified seasonal allowance described in annual limit of BS Chinook salmon will in paragraph (g)(7) of this section. * * * be attained after April 15. paragraph (a)(5)(iv) of this section will * * * * * (B) For the AI Chinook salmon limit be allocated entirely to vessels 11. In § 679.50, paragraphs (c)(2)(i), under paragraph (e)(1)(ix) of this harvesting pollock for processing by the (c)(5) paragraph heading, and (e)(1) are section, area 1 in Figure 8 to this part inshore component in the GOA after revised and paragraph (c)(5)(i)(C) is will be closed on the following dates: subtraction of an amount that is added to read as follows: projected by the Regional Administrator (1) From the effective date of the to be caught by, or delivered to, the closure until April 15, and from § 679.50 Groundfish Observer Program offshore component in the GOA September 1 through December 31, if applicable through December 31, 2007. incidental to directed fishing for other the Regional Administrator determines * * * * * groundfish species. that the annual limit of AI Chinook (c) * * * * * * * * salmon will be attained before April 15. (2) * * * 8. In § 679.21, paragraphs (e)(1)(vii) (2) From September 1 through (i) Pollock fishery. In a retained catch and (e)(7)(viii) are revised and December 31, if the Regional of pollock that is greater than the paragraph (e)(1)(ix) is added to read as Administrator determines that the retained catch of any other groundfish follows: annual limit of AI Chinook salmon will species or species group that is specified be attained after April 15. as a separate groundfish fishery under § 679.21 Prohibited species bycatch * * * * * this paragraph (c)(2) and in a retained management. 9. In § 679.23, paragraph (e)(2) is catch of pollock harvested in the AI * * * * * revised to read as follows: directed pollock fishery. (e) * * * * * * * * (1) * * * § 679.23 Seasons. (5) AFA and AI directed pollock (vii) Chinook salmon. The trawl * * * * * fishery catcher/processors and closures identified in paragraph (e) * * * motherships -- * * * (e)(7)(viii) of this section will take effect (2) Directed fishing for pollock in the (i) * * * when the Regional Administrator Bering Sea subarea by inshore, offshore (C) AI directed pollock fishery determines that the PSC limit of 29,000 catcher/processor, and mothership catcher/processors and motherships. A Chinook salmon caught while components, in the AI directed pollock catcher/processor participating in the AI harvesting pollock in the BS between fishery, and pollock CDQ fisheries. directed pollock fishery or a mothership January 1 and December 31 is attained. Subject to other provisions of this part, processing pollock harvested in the AI * * * * * directed fishing for pollock by vessels directed pollock fishery must have on (ix) AI Chinook salmon. The trawl catching pollock for processing by the board at least two NMFS-certified closures identified in paragraph inshore component, catcher/processors observers, at least one of which must be (e)(7)(viii) of this section will take effect in the offshore component, and certified as a lead level 2 observer, for when the Regional Administrator motherships in the offshore component each day that the vessel is used to determines that the AI PSC limit of 700 in the Bering Sea subarea, directed harvest, process, or take deliveries of

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groundfish. More than two observers are Marketing Act 1934 (15 U.S.C. 521) for pollock cooperative that applies for and required if the observer workload the purpose of cooperatively managing receives an AFA inshore pollock restriction at paragraph (c)(5)(ii) of this directed fishing for BS subarea pollock cooperative fishing permit will receive section would otherwise preclude must comply with the provisions of this an annual quota share percentage of sampling as required under section. The owners and operators of all pollock for the BS subarea that is equal § 679.63(a)(1). the member vessels that are signatories to the sum of each member vessel’s * * * * * to a fishery cooperative are jointly and official AFA inshore cooperative catch (e) * * * severally responsible for compliance history for the BS subarea divided by (1) Any vessel, shoreside processor, or with the requirements of this section. the sum of the official AFA inshore stationary floating processor required to * * * * * cooperative catch histories of all comply with observer coverage (d) * * * inshore-sector endorsed AFA catcher requirements under paragraphs (c) or (d) (3) What is the deadline for filing? vessels. The cooperative’s quota share of this section or under § 679.7(f)(4) or The contract or renewal letter and percentage will be listed on the a catcher vessel less than 60 ft (18.3 m) supporting materials must be received cooperative’s AFA pollock cooperative LOA that is participating in the AI by NMFS and by the Council at least 30 permit. directed pollock fishery must use, upon days prior to the start of any fishing (3) Conversion of quota share written notification by the Regional activity conducted under the terms of percentage to TAC allocations. Each Administrator, NMFS’ staff or an the contract. In addition, an inshore inshore pollock cooperative that individual authorized by NMFS to cooperative that is also applying for an receives a quota share percentage for a satisfy observer coverage requirements allocation of BS subarea pollock under fishing year will receive an annual as specified in paragraphs (c) and (d) of § 679.62 must file its contract, any allocation of pollock that is equal to the this section or for other conservation amendments hereto, and supporting cooperative’s quota share percentage and management purpose. materials no later than December 1 of multiplied by the annual inshore BS * * * * * the year prior to the year in which subarea pollock allocation. Each 12. In Subpart F, the subpart heading fishing under the contract will occur. cooperative’s annual pollock TAC is revised to read as follows: * * * * * allocation may be published in the (g) Landing tax payment deadline. interim, and final BSAI TAC Subpart F—American Fisheries Act You must pay any landing tax owed to specifications notices. (b) * * * and Aleutian Island Directed Pollock the State of Alaska under section 210(f) Fishery Management Measures (2) * * * of the AFA and paragraph (e)(1)(v) of (i) Member vessels. All pollock caught 13. Section 679.60 is revised to read this section before April 1 of the by a member vessel while engaged in as follows: following year, or the last day of the directed fishing for pollock in the BS month following the date of publication subarea unless the vessel is under § 679.60 Authority and related regulations. of statewide average prices by the contract to another cooperative and the Regulations under this subpart were Alaska State Department of Revenue, pollock is assigned to another developed by the National Marine whichever is later. All members of the cooperative. Fisheries Service and the North Pacific cooperative are prohibited from (ii) Contract vessels. All pollock Fishery Management Council to harvesting pollock in the BS subarea contracted for harvest and caught by a implement the American Fisheries Act directed pollock fishery after the vessel under contract to the cooperative (AFA) [Div. C, Title II, Subtitle II, Public payment deadline if any member vessel under paragraph (c) of this section while Law 105–277, 112 Stat. 2681 (1998)] and has failed to pay all required landing the vessel was engaged in directed the Consolidated Appropriations Act of taxes from any landings made outside fishing for pollock in the BS subarea. 2004 (Public Law 108–199, Sec. 803). the State of Alaska by the landing (3) How must cooperative harvests be Additional regulations in this part that deadline. Members of the cooperative reported to NMFS? Each inshore pollock implement specific provisions of the may resume directed fishing for pollock cooperative must report its BS subarea AFA and Public Law 108–199, Sec. 803 once all overdue landing taxes are paid. pollock harvest to NMFS on a weekly are set out at §§ 679.2 Definitions, 679.4 15. In § 679.62, the introductory text basis according to the recordkeeping Permits, 679.5 Recordkeeping and in paragraph (a), and paragraphs (a)(2), and reporting requirements set out at reporting, 679.7 Prohibitions, 679.20 (a)(3), (b)(2)(i), (b)(2)(ii), and (b)(3) are § 679.5(o). General limitations, 679.21 Prohibited revised to read as follows: * * * * * species bycatch management, 679.28 § 679.62 Inshore sector cooperative 16. In § 679.63, paragraph (c) is Equipment and operational allocation program. revised to read as follows: requirements for Catch Weight (a) How will inshore sector Measurement, 679.31 CDQ reserves, and § 679.63 Catch weighing requirements for cooperative allocations be made? An 679.50 Groundfish observer program. vessels and processors. inshore catcher vessel cooperative that Regulations developed by the * * * * * applies for and receives an AFA inshore Department of Transportation to (c) What are the requirements for AFA cooperative fishing permit under implement provisions of the AFA are inshore processors? (1) Catch weighing. § 679.4(l)(6) will receive a sub-allocation found at 50 CFR part 356. All groundfish landed by AFA catcher of the annual BS subarea inshore sector 14. In § 679.61, paragraphs (b), (d)(3), vessels engaged in directed fishing for directed fishing allowance. Each inshore and (g) are revised to read as follows: pollock in the BS subarea must be cooperative’s annual allocation sorted and weighed on a scale approved § 679.61 Formation and operation of amount(s) will be determined using the by the State of Alaska as described in fishery cooperatives. following procedure: § 679.28(c), and be made available for * * * * * * * * * * sampling by a NMFS certified observer. (b) Who must comply this section? (2) Conversion of individual vessel The observer must be allowed to test Any fishery cooperative formed under catch histories to annual cooperative any scale used to weigh groundfish in section 1 of the Fisherman’s Collective quota share percentages. Each inshore order to determine its accuracy.

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(2) Observer coverage and prior 1997 multiplied by the TAC of that DEPARTMENT OF COMMERCE notification. The plant manager or plant species available for harvest by catcher/ liaison must notify the observer of the processors in the year in which the National Oceanic and Atmospheric offloading schedule for each delivery of harvest limit will be in effect. Administration BS subarea pollock by an AFA catcher (ii) If the amount of a species vessel at least 1 hour prior to offloading. 50 CFR Part 679 calculated under paragraph (a)(4)(i) of The plant manager must ensure that an this section is determined by the [Docket No. 041126333–4333–01; I.D. observer monitors each delivery of BS 112204C] subarea pollock from an AFA catcher Regional Administrator to be vessel and is on site the entire time the insufficient to meet bycatch needs for Fisheries of the Exclusive Economic delivery is being weighed or sorted. AFA catcher/processors in other Zone Off Alaska; Gulf of Alaska; 17. In § 679.64, introductory directed fisheries for groundfish, the Proposed 2005 and 2006 Harvest paragraph of (a), paragraphs (a)(1)(i), Regional Administrator will prohibit Specifications for Groundfish (a)(2)(ii), (a)(4), introductory paragraph directed fishing for that species by AFA of (b), and introductory paragraph of catcher processors and establish the AGENCY: National Marine Fisheries (b)(3) are revised to read as follows: sideboard amount equal to the amount Service (NMFS), National Oceanic and of that species caught by AFA catcher Atmospheric Administration (NOAA), § 679.64 Harvesting sideboard limits in Commerce. other fisheries. processors incidental to directed fishing for other groundfish species. ACTION: 2005 and 2006 proposed harvest (a) Harvesting sideboards for listed specifications for groundfish; * * * * * AFA catcher/processors. The Regional apportionment of reserves; request for Administrator will restrict the ability of (b) The Regional Administrator will comments. listed AFA catcher/processors to engage restrict the ability of AFA catcher in directed fishing for non-pollock vessels to engage in directed fishing for SUMMARY: NMFS proposes 2005 and groundfish species to protect other groundfish species to protect 2006 harvest specifications, reserves participants in other groundfish participants in other groundfish and apportionments, and Pacific halibut fisheries from adverse effects resulting fisheries from adverse effects resulting prohibited species catch (PSC) limits for from the AFA and from fishery from the AFA and from fishery the groundfish fishery of the Gulf of cooperatives in the BS subarea directed Alaska (GOA). This action is necessary cooperatives in the BS subarea directed pollock fishery. to establish harvest limits and pollock fishery. (1) * * * associated management measures for (i) Except for Aleutian Islands * * * * * groundfish during the 2005 and 2006 pollock, the Regional Administrator will (3) Except for Aleutian Islands fishing years. The intended effect of this establish annual AFA catcher/processor pollock, the Regional Administrator will action is to conserve and manage the harvest limits for each groundfish establish annual AFA catcher vessel groundfish resources in the GOA in species or species group in which a TAC harvest limits for each groundfish accordance with the Magnuson-Stevens is specified for an area or subarea of the species or species group in which a TAC Fishery Conservation and Management BSAI as follows: is specified for an area or subarea of the Act (Magnuson-Stevens Act). * * * * * GOA and BSAI as follows: DATES: Comments must be received by (2) * * * January 6, 2005. (ii) If the amount of Pacific ocean * * * * * ADDRESSES: Send comments to Sue perch calculated under paragraph 18. In § 679.65, paragraphs (a) and (b) Salveson, Assistant Regional (a)(2)(i) of this section is determined by are revised to read as follows: Administrator, Sustainable Fisheries the Regional Administrator to be § 679.65 Crab processing sideboard limits. Division, Alaska Region, NMFS, Attn: insufficient to meet bycatch needs of Lori Durall. Comments may be AFA catcher/processors in other (a) What is the purpose of crab submitted by: directed fisheries for groundfish, the processing limits? The purpose of crab • Mail to P.O. Box 21668, Juneau, AK Regional Administrator will prohibit processing sideboard limits is to protect 99802; directed fishing for Aleutian Islands processors not eligible to participate in • Hand Delivery to the Federal Pacific ocean perch by AFA catcher the BS subarea directed pollock fishery Building, 709 West 9th Street, Room processors and establish the sideboard from adverse effects as a result of the 420A, Juneau, AK; amount equal to the amount of Aleutian • E-mail to Islands Pacific ocean perch caught by AFA and the formation of fishery cooperatives in the BS subarea directed [email protected] AFA catcher processors incidental to and include in the subject line of the e- pollock fishery. directed fishing for other groundfish mail comments the document identifier: species. (b) To whom do the crab processing 2005 Proposed Specifications (E-mail * * * * * sideboard limits apply? The crab comments, with or without attachments, (4) * * * processing sideboard limits in this are limited to 5 megabytes); (i) Except as provided for in section apply to any AFA inshore or • FAX to 907–586–7557; or paragraphs (a)(1)(ii) through (a)(3) of mothership entity that receives pollock • Webform at the Federal this section, the harvest limit for each harvested in the BS directed pollock eRulemaking Portal: BSAI groundfish species or species fishery by a fishery cooperative www.regulations.gov. Follow the group will be equal to the 1995 through established under § . 679.61 or § 679.62. instructions at that site for submitting 1997 aggregate retained catch of that comments. species by catcher/processors listed in * * * * * Copies of the draft Environmental paragraphs 208(e)(1) through (20) and [FR Doc. 04–26835 Filed 12–6–04; 8:45 am] Assessment/Initial Regulatory section 209 of the AFA in non-pollock BILLING CODE 3510–22–S Flexibility Analysis (EA/IRFA) prepared target fisheries divided by the sum of for this action and the 2001 Biological the catch of that species in 1995 through Opinion (BiOp) on the Steller sea lion

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protection measures are available from specifications will be updated in early analyzed during the harvest NMFS at the address above or from the 2006 when final specifications for 2006 specification process. Alaska Region website and new specifications for 2007 are The Council recommended that www.fakr.noaa.gov. Copies of the final implemented. specifications for the hook-and-line gear 2003 Stock Assessment and Fishery In October 2004, the Council also and pot gear sablefish individual fishing Evaluation (SAFE) reports, dated recommended a biennial harvest quota (IFQ) fisheries be limited to 1 year November 2003, are available from the specifications process for certain long- to ensure that those fisheries are North Pacific Fishery Management lived species and for species for which conducted concurrent with the halibut Council, West 4th Avenue, Suite 306, little new management information is IFQ fishery. Having the sablefish IFQ Anchorage, AK, 99510 or from its available on other than a biennial basis. fisheries concurrent with the halibut website at www.fakr.noaa.gov/npfmc. Based on current survey schedules, the IFQ fishery would reduce the potential FOR FURTHER INFORMATION CONTACT: Tom GOA species for which biennial harvest for discards of halibut and sablefish in Pearson, Sustainable Fisheries Division, specifications process would be used these fisheries. The sablefish IFQ Alaska Region, 907–481–1780 or e-mail are deep water flatfish, rex sole, shallow fisheries would remain closed at the at [email protected]. water flatfish, flathead sole, arrowtooth beginning of each fishing year until the flounder, slope rockfish, northern final specifications for the sablefish IFQ SUPPLEMENTARY INFORMATION: rockfish, Pacific ocean perch, fisheries are in effect. The trawl Background shortraker/rougheye rockfish, pelagic sablefish fishery would be managed shelf rockfish, thornyhead rockfish, using specifications for up to a 2-year NMFS manages the groundfish demersal shelf rockfish, skates, and period, similar to GOA pollock, Pacific fisheries in the exclusive economic zone Atka mackerel. Stock assessment cod and the ‘‘other species’’ category. off Alaska under the Fishery surveys are conducted biennially in the The FMP and its implementing Management Plan for Groundfish of the GOA for these species. Because new regulations require NMFS, after Gulf of Alaska (FMP). The North Pacific information is updated every two years consultation with the Council, to Fishery Management Council (Council) and harvest amounts are fairly stable specify the total allowable catch (TAC) prepared the FMP under the authority of from year to year, the harvest for each target species and for the ‘‘other the Magnuson-Stevens Act, 16 U.S.C. specifications process for these species species’’ category, the sum of which 1801, et seq. Regulations governing U.S. would be conducted every 2 years. If must be within the optimum yield (OY) fisheries and implementing the FMP new management information becomes range of 116,000 to 800,000 metric tons appear at 50 CFR parts 600 and 679. available for any of those species on a (mt). Section 679.20(c)(1) further Amendments 48/48 to the FMP and to more frequent basis, an annual harvest requires NMFS to publish and solicit the Fishery Management Plan for specifications process could still be public comment on proposed annual Groundfish of the Bering Sea and used. Amendment 48 to the GOA FMP TACs, halibut PSC amounts, and Aleutian Islands Management Area were would allow harvest specifications to be seasonal allowances of pollock and unanimously recommended by the established for up to 2 fishing years, and inshore/offshore Pacific cod. The Council in October 2003 and approved the administrative process to establish proposed specifications set forth in by NMFS on October 12, 2004. The final these biennial harvest specifications Tables 1 through 13 of this document rule implementing Amendments 48/48 would be done every other year, satisfy these requirements. For 2005, the was published November 8, 2004, (69 concurrent with the annual harvest sum of the proposed TAC amounts is FR 64683). Amendments 48/48 revise specifications process used for other 264,265 mt. For 2006, the sum of the the administrative process used to species. proposed TAC amounts is 253,867 mt. establish annual specifications for the Allowing for up to two years of Under § 679.20(c)(3), NMFS will groundfish fisheries of the GOA and the specifications during the specifications publish the final 2005 and 2006 Bering Sea and Aleutian Islands (BSAI). process would recognize the time period specifications after (1) considering The goals of Amendments 48/48 in of projections that must be used for comments received within the comment revising the specifications process are to establishing harvest specifications that period (see DATES), (2) consulting with (1) manage fisheries based on the best would allow for rulemaking in the the Council at its December 2004 scientific information available, (2) following year and would provide the meeting, and (3) considering new provide for adequate prior public review Council and NMFS the flexibility to information presented in the EA and the and comment on Council conduct either an annual or biennial final 2004 SAFE report prepared for the recommendations, (3) provide for specifications process in response to 2005 and 2006 fisheries. additional opportunity for Secretarial potential changes in the frequency of Section 679.20(c)(2)(i) provides that review, (4) minimize unnecessary stock assessment surveys or other data one-fourth of each proposed TAC and public confusion and disruption to or administrative issues. Based on apportionment (not including the fisheries, and (5) promote current survey schedules and available reserves and the first seasonal administrative efficiency. information, pollock, trawl sablefish, allowances of pollock and Pacific cod), Based on the approval of Pacific cod, and ‘‘other species’’ one-fourth of the proposed halibut PSC Amendments 48/48, the Council category fisheries in the GOA will be amounts, and the proposed first recommended 2005 and 2006 proposed managed using an annual harvest seasonal allowances of pollock and specifications for GOA groundfish. specification process. However, this Pacific cod will become effective 0001 These proposed specifications are based process will provide specifications for hours, Alaska local time (A.l.t.) January on the 2003 SAFE report. In November two years. The second year’s 1, 2005, on an interim basis and remain 2004, the 2004 SAFE report will be used specifications will be replaced by the in effect until superseded by the final to develop the final 2005 and 2006 new harvest specifications through harvest specifications, which will be groundfish acceptable biological catch rulemaking based on the annual harvest published in the Federal Register. amounts (ABC). When possible, this specification process. Any proposed Without interim specifications in effect proposed rule will identify any proposal changes from using either an annual on January 1, the groundfish fisheries that may be anticipated to change in the process or a biennial process for a would not be able to open on that date. final specifications. The 2006 particular target species will be This would result in disruption to the

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fishing industry. The 2005 interim the best available biological and indicate that the biomass level is lower harvest specifications will be published socioeconomic information, including than projected and because it represents by NMFS in the Federal Register prior projected biomass trends, information an increase from the 2004 ABC. The to January 1, 2005. on assumed distribution of stock Plan Team recommended that the 2004 biomass, and revised methods used to ABC of 64,740 mt for the W/C/WYK Proposed Steller Sea Lion Protection calculate stock biomass. The Council pollock stock be rolled over in the Measures Revisions and its Scientific and Statistical proposed specifications for 2005 and In June 2004, the Council Committee (SSC) reviewed current 2006 given the apparently similar 2003 unanimously recommended revisions to biological and harvest information about and 2004 survey results from the NMFS’ the Steller sea lion protection measures the condition of groundfish stocks in the winter surveys in the GOA. The SSC in the GOA to alleviate some of the GOA in October 2004. Because of time concurred with the pollock assessment economic burden on coastal constraints, the Advisory Panel (AP) did recommendation that OFL and ABC communities while maintaining not make any recommendations to the levels be unchanged from 2004 levels protection for Steller sea lions and their Council regarding the proposed harvest until a formal stock assessment can be critical habitat. These revisions would specifications at its October meeting. completed in November 2004. adjust pollock and Pacific cod fishing Most of the information available to the As in 2004, the SSC and Council closures near four Steller sea lion SSC and to the Council was initially recommended that the method of haulouts and would revise seasonal compiled by the Council’s GOA Plan apportioning the sablefish ABC among management of pollock harvest. NMFS Team and was presented in the final management areas include commercial concluded in an Endangered Species 2003 SAFE report for the GOA fishery and survey data. NMFS stock Act, section 7, informal consultation groundfish fisheries, dated November assessment scientists believe that the dated August 26, 2004, that fishing 2003 (see ADDRESSES). The Plan Team use of unbiased commercial fishery data under the proposed revisions is not annually produces such a document as reflecting catch-per-unit effort provides likely to adversely affect Steller sea the first step in the process of specifying a desirable input for stock distribution lions beyond those effects already TACs. The SAFE report contains a assessments. The use of commercial considered in the 2001 Biological review of the latest scientific analyses fishery data is evaluated annually to Opinion on the Steller sea lion and estimates of each species’ biomass assure that unbiased information is protection measures and its June 19, and other biological parameters and included in stock distribution models. 2003 supplement. NMFS published a summaries of the available information The Council’s recommendation for proposed rule on September 21, 2004 on the GOA ecosystem and the sablefish area apportionments also takes (69 FR 56384) to implement these economic condition of the groundfish into account the prohibition on the use revisions, inviting comments through fisheries off Alaska. From these data and of trawl gear in the Southeast Outside October 21, 2004. If adopted, NMFS analyses, the Plan Team estimates an (SEO) District of the Eastern GOA and anticipates that a final rule would be ABC for each species category. The 2003 makes available 5 percent of the published before the beginning of the SAFE report will be updated to include combined Eastern GOA ABCs to trawl 2005 fishing year. The revised pollock new information collected during 2004. gear for use as incidental catch in other harvest management measures would Revised stock assessments made directed groundfish fisheries in the affect the annual specifications by available by the Plan Team in November West Yakutat District. extending the A and C season dates for 2004 and included in the final 2004 The SSC and Council recommended pollock and provide clarification as to SAFE report, will be available in that the ABC for Pacific cod in the GOA how the Regional Administrator, Alaska December 2004. The final harvest be apportioned among regulatory areas Region, NMFS, (Regional Administrator) specifications may be adjusted from the based on the three most recent NMFS’ would rollover unharvested amounts of proposed harvest specifications based summer trawl surveys. As in previous pollock between seasons. on the 2004 SAFE report. years, the Plan Team, SSC, and Council If adopted, the proposed rule would Based on the recommendations from recommended that total removals of extend the pollock A season dates from the SSC for overfishing levels (OFLs) Pacific cod from the GOA not exceed January 20 through February 25 to and ABCs, the Council recommended ABC recommendations. Accordingly, January 20 through March 10 and the OFLs and ABCs for stocks in tiers 1 the Council recommended that the 2005 extend the pollock C season dates from through 3, except for pollock, be based and 2006 TACs be adjusted downward August 25 through September 15 to on biomass projections as set forth in from the ABCs by amounts equal to the August 25 through October 1 in the the 2003 SAFE report and on estimates 2005 guideline harvest levels (GHL) Western and Central Regulatory Areas of of groundfish harvests through the 2004 established for Pacific cod by the State the GOA. The proposed action also and 2005 fishing years. The Council of Alaska (State) for the state managed would change regulatory provisions for recommended that OFL and ABC levels fisheries in the GOA. The effect of the the rollover of a statistical area’s for those stocks in tiers 4 through 6, for State’s GHL on the Pacific cod TAC is unharvested pollock apportionment into which projections cannot be made, discussed in greater detail below. As in the subsequent season. The rollover remain unchanged from 2004 levels for 2004, NMFS proposes for 2005 and 2006 amount would be limited to 20 percent 2005 and 2006. to establish an A season directed fishing of the seasonal apportionment for the The SSC adopted the OFL and ABC allowance (DFA) for the Pacific cod statistical area. Any unharvested recommendations from the Plan Team fisheries in the GOA based on the pollock above the 20 percent limit could for all groundfish species. In the 2003 management area TACs less the recent be further distributed to the other SAFE report, the 2005 and 2006 ABC average A season incidental catch of statistical areas, in proportion to the projections are 72,100 mt and 70,642 Pacific cod in each management area estimated biomass in the subsequent mt, respectively, for the combined before June 10 (see § 679.20(d)(1)). The season in those statistical areas. Western, Central, and West Yakutat (W/ DFA and incidental catch before June 10 C/WYK) GOA stock of pollock. The Plan will be managed such that total harvest Proposed ABC and TAC Specifications Team did not endorse the ABC in the A season will be no more than 60 The proposed ABC and TAC for each projections because the NMFS 2004 percent of the annual TAC. Incidental species or species group are based on winter Shelikof survey estimates catch taken after June 10 will continue

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to be taken from the B season TAC. This through February 25), the B season NMFS also is establishing seasonal action meets the intent of the Steller Sea (March 10 through May 31), the C apportionments of the annual Pacific Lion Protection Measures by achieving season (August 25 through September cod TAC in the Western and Central temporal dispersion of the Pacific cod 15), and the D season (October 1 Regulatory Areas. Sixty percent of the removals and by reducing the likelihood through November 1) in Statistical annual TAC is apportioned to the A of harvest exceeding 60 percent of the Areas 610, 620, and 630 of the GOA (see season for hook-and-line, pot or jig gear annual TAC in the A season (January 1 § 679.23(d)(2)(i) through (iv) and from January 1 through June 10, and for through June 10). § 679.20(a)(5)(iii)(B)). As discussed trawl gear from January 20 through June For 2005 and 2006, the Council above, revised seasonal dates for the A 10. Forty percent of the annual TAC is recommends and NMFS proposes the and C season pollock fisheries would be apportioned to the B season for hook- ABCs listed in Tables 1 and 2. These effective with the implementation of the and-line, pot or jig gear from September amounts reflect harvest amounts that are final rule for revising Steller sea lion 1 through December 31, and for trawl less than the specified overfishing protection measures (69 FR 56384, gear from September 1 through amounts. The sum of the ABCs for all September 21, 2004). November 1 (see §§ 679.23(d)(3) and assessed groundfish is 514,864 mt for 679.20(a)(11)). These seasonal The 2005 and 2006 Pacific cod TACs 2005 and 515,240 mt for 2006, which is apportionments of the annual Pacific higher than the 2004 ABC of 507,092 mt are affected by the State’s developing cod TAC are discussed in greater detail (69 FR 26320, May 12, 2004). fishery for Pacific cod in State waters in below. the Central and Western GOA, as well The FMP specifies that the amount for Specification and Apportionment of as in Prince William Sound (PWS). The the ‘‘other species’’ category is TAC Amounts SSC and Council recommended that the calculated as 5 percent of the combined The Council recommended TACs for sum of all State and Federal water TAC amounts for target species. The 2005 and 2006 that are equal to ABCs Pacific cod removals not exceed the 2005 GOA-wide ‘‘other species’’ TAC is for pollock, deep-water flatfish, rex sole, ABC. Accordingly, the Council 12,584 mt and the 2006 TAC is 12,089 sablefish, Pacific ocean perch, recommended that in 2005 the Pacific mt, which is 5 percent of the sum of the shortraker and rougheye rockfish, cod TAC be reduced from ABC levels to combined TAC amounts (251,681 mt for northern rockfish, pelagic shelf rockfish, account for State GHLs in each 2005 and 241,778 mt for 2006) for the thornyhead rockfish, demersal shelf regulatory area of the GOA. Therefore, assessed target species. The sum of the rockfish, and Atka mackerel. The respective TACs are reduced from ABCs TACs for all GOA groundfish is 264,265 Council recommended TACs that are as follows: (1) Eastern GOA, 412 mt; (2) mt for 2005 and 253,867 mt for 2006, less than the ABCs for Pacific cod, Central GOA, 8,141 mt; and (3) Western which is within the OY range specified flathead sole, shallow-water flatfish, GOA, 5,301 mt. For 2006, the Council by the FMP. The sum of the 2005 TACs arrowtooth flounder, and other rockfish. recommended that the Pacific cod TAC and the sum of the 2006 TACs are lower The apportionment of annual pollock be reduced from ABC levels to account than the 2004 TAC sum of 271,776 mt. TAC among the Western and Central for State GHLs in each regulatory area NMFS finds that the Council’s Regulatory Areas of the GOA reflects the of the GOA. Therefore, the respective recommendations for proposed OFL, seasonal biomass distribution and is TACs are, therefore, reduced from ABCs ABC, and TAC amounts are consistent discussed in greater detail below. The as follows: (1) Eastern GOA, 338 mt; (2) with the biological condition of annual pollock TAC in the Western and Central GOA, 6,683 mt; and (3) Western groundfish stocks as adjusted for other Central Regulatory Areas of the GOA is GOA, 4,352 mt. These amounts reflect biological and socioeconomic divided into four equal seasonal the sum of the State’s 2005 GHLs in considerations, including maintaining apportionments. Twenty-five percent of these areas, which are 10 percent, 24.25 the total TAC within the required OY the annual TAC in the Western and percent, and 25 percent of the Eastern, range of 116,000 to 800,000 mt. The Central Regulatory Areas of the GOA is Central, and Western GOA ABCs, proposed 2005 and 2006 ABCs, TACs, apportioned to the A season (January 20 respectively. and OFLs are shown in Tables 1 and 2.

TABLE 1—PROPOSED 2005 ABCS, TACS, AND OVERFISHING LEVELS OF GROUNDFISH FOR THE WESTERN/CENTRAL/ WEST YAKUTAT (W/C/WYK), WESTERN (W), CENTRAL (C), EASTERN (E) REGULATORY AREAS, AND IN THE WEST YAKUTAT (WYK), SOUTHEAST OUTSIDE (SEO), AND GULFWIDE (GW) DISTRICTS OF THE GULF OF ALASKA. (Values are rounded to the nearest metric ton)

Totals Species Area1 ABC TAC Overfishing level

Pollock2 Shumagin (610) 22,930 22,930

Chirikof (620) 26,490 26,490

Kodiak (630) 14,040 14,040

WYK (640) 1,280 1,280

Subtotal W/C/WYK 64,740 64,740 91,060

SEO (650) 6,520 6,520 8,690

Total 71,260 71,260 99,750

Pacific cod3 W 21,204 15,903

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TABLE 1—PROPOSED 2005 ABCS, TACS, AND OVERFISHING LEVELS OF GROUNDFISH FOR THE WESTERN/CENTRAL/ WEST YAKUTAT (W/C/WYK), WESTERN (W), CENTRAL (C), EASTERN (E) REGULATORY AREAS, AND IN THE WEST YAKUTAT (WYK), SOUTHEAST OUTSIDE (SEO), AND GULFWIDE (GW) DISTRICTS OF THE GULF OF ALASKA.—Contin- ued (Values are rounded to the nearest metric ton)

Totals Species Area1 ABC TAC Overfishing level

C 33,573 25,432

E 4,123 3,711

Total 58,900 45,046 78,400

Flatfish4 (deep-water) W 310 310

C 2,970 2,970

WYK 1,880 1,880

SEO 910 910

Total 6,070 6,070 8,010

Rex sole W 1,680 1,680

C 7,340 7,340

WYK 1,340 1,340

SEO 2,290 2,290

Total 12,650 12,650 16,480

Flathead sole W 11,694 2,000

C 30,024 5,000

WYK 2,992 2,992

SEO 390 390

Total 45,100 10,382 56,500

Flatfish5 (shallow- W 21,580 4,500 water)

C 27,250 13,000

WYK 2,030 2,030

SEO 1,210 1,210

Total 52,070 20,740 63,840

Arrowtooth flounder W 26,249 8,000

C 168,953 25,000

WYK 11,787 2,500

SEO 9,911 2,500

Total 216,900 38,000 253,900

Sablefish6 W 2,411 2,411

C 5,892 5,892

WYK 2,036 2,036

SEO 3,053 3,053

Subtotal E 5,089 5,089

Total 13,392 13,392 19,008

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TABLE 1—PROPOSED 2005 ABCS, TACS, AND OVERFISHING LEVELS OF GROUNDFISH FOR THE WESTERN/CENTRAL/ WEST YAKUTAT (W/C/WYK), WESTERN (W), CENTRAL (C), EASTERN (E) REGULATORY AREAS, AND IN THE WEST YAKUTAT (WYK), SOUTHEAST OUTSIDE (SEO), AND GULFWIDE (GW) DISTRICTS OF THE GULF OF ALASKA.—Contin- ued (Values are rounded to the nearest metric ton)

Totals Species Area1 ABC TAC Overfishing level

Pacific ocean perch7 W 2,489 2,489 2,964

C 8,253 8,253 9,828

WYK 802 802

SEO 1,556 1,556

Subtotal E 2,358 2,808

Total 13,100 13,100 15,600

Shortraker/rougheye8 W 254 254

C 656 656

E 408 408

Total 1,318 1,318 2,510

Other rockfish9,10 W4040

C 300 300

WYK 130 130

SEO 3,430 200

Total 3,900 670 5,150

Northern rock- W 730 730 fish10,11,15

C 3,870 3,870

E N/A N/A

Total 4,600 4,600 5,400

Pelagic shelf rock- W 370 370 fish12

C 3,010 3,010

WYK 210 210

SEO 880 880

Total 4,470 4,470 5,570

Thornyhead rockfish W 410 410

C 1,010 1,010

E 520 520

Total 1,940 1,940 2,590

Big/longnose13 C 4,435 3,284 skates

Other skates14 GW 3,709 3,709

Total 8,144 6,993 10,859

Demersal shelf rock- SEO 450 450 690 fish16

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TABLE 1—PROPOSED 2005 ABCS, TACS, AND OVERFISHING LEVELS OF GROUNDFISH FOR THE WESTERN/CENTRAL/ WEST YAKUTAT (W/C/WYK), WESTERN (W), CENTRAL (C), EASTERN (E) REGULATORY AREAS, AND IN THE WEST YAKUTAT (WYK), SOUTHEAST OUTSIDE (SEO), AND GULFWIDE (GW) DISTRICTS OF THE GULF OF ALASKA.—Contin- ued (Values are rounded to the nearest metric ton)

Totals Species Area1 ABC TAC Overfishing level

Atka mackerel GW 600 600 6,200

Other species17 GW N/A 12,584 N/A

TOTAL18 514,864 264,265 650,457 1. Regulatory areas and districts are defined at § 679.2. 2. Pollock is apportioned in the Western/Central Regulatory Areas among three statistical areas. During the Aseason, the apportionment is based on an adjusted estimate of the relative distribution of pollock biomass at 25 percent, 56 percent, and 19 percent in Statistical Areas 610, 620, and 630, respectively. During the B season, the apportionment is based on the relative distribution of pollock biomass at 25 percent, 66 per- cent, and 9 percent in Statistical Areas 610, 620, and 630, respectively. During the C and D seasons, the apportionment is based on the relative distribution of pollock biomass at 47 percent, 23 percent, and 30 percent in Statistical Areas 610, 620, and 630, respectively. These seasonal ap- portionments are shown in Table 5. In the West Yakutat and Southeast Outside Districts of the Eastern Regulatory Area, pollock is not divided into seasonal allowances. 3.The annual Pacific cod TAC is apportioned 60 percent to an A season and 40 percent to a B season in the Western and Central Regulatory Areas of the GOA. Pacific cod is allocated 90 percent for processing by the inshore component and 10 percent for processing by the offshore component. Seasonal apportionments and component allocations of TAC are shown in Tables 6 and 7. 4. ‘‘Deep water flatfish’’ means Dover sole, Greenland turbot, and deepsea sole. 5. ‘‘Shallow water flatfish’’ means flatfish not including ‘‘deep water flatfish,’’ flathead sole, rex sole, or arrowtooth flounder. 6. Sablefish is allocated to trawl and hook-and-line gears (Tables 3 and 4). 7. ‘‘Pacific ocean perch’’ means Sebastes alutus. 8. ‘‘Shortraker/rougheye rockfish’’ means Sebastes borealis (shortraker) and S. aleutianus (rougheye). 9. ‘‘Other rockfish’’ in the Western and Central Regulatory Areas and in the West Yakutat District means slope rockfish and demersal shelf rockfish. The category ‘‘other rockfish’’ in the SEO District means Slope rockfish. 10. ‘‘Slope rockfish’’ means Sebastes aurora (aurora), S. melanostomus (blackgill), S. paucispinis (bocaccio), S. goodei (chilipepper), S. crameri (darkblotch), S. elongatus (greenstriped), S. variegatus (harlequin), S. wilsoni (pygmy), S. babcocki (redbanded), S. proriger (redstripe), S. zacentrus (sharpchin), S. jordani (shortbelly), S. brevispinis (silvergrey), S. diploproa (splitnose), S. saxicola (stripetail), S. miniatus (vermilion), and S. reedi (yellowmouth). In the Eastern GOA only, slope rockfish also includes northern rockfish, S. polyspinous. 11. ‘‘Northern rockfish’’ means Sebastes polyspinis. 12. ‘‘Pelagic shelf rockfish’’ means Sebastes ciliatus (dusky), S. entomelas (widow), and S. flavidus (yellowtail). 13. Big skate means Raja binoculata and longnose skate means Raja rhina. 14. Other skates means big and long nose skates in the E and W GOA and Bathyraja spp. Gulfwide. 15. N/A means not applicable. 16. ‘‘Demersal shelf rockfish’’ means Sebastes pinniger (canary), S. nebulosus (china), S. caurinus (copper), S. maliger (quillback), S. helvomaculatus (rosethorn), S. nigrocinctus (tiger), and S. ruberrimus (yelloweye). 17. ‘‘Other species’’ means sculpins, sharks, squid, and octopus. There is no OFL or ABC for ‘‘other species’’, the TAC for ‘‘other species’’ equals 5 percent of the TACs for assessed target species. 18. The total ABC and OFL is the sum of the ABCs and OFLs for assessed target species.

TABLE 2—PROPOSED 2006 ABCS, TACS, AND OVERFISHING LEVELS OF GROUNDFISH FOR THE WESTERN/CENTRAL/ WEST YAKUTAT (W/C/WYK), WESTERN (W), CENTRAL (C), EASTERN (E) REGULATORY AREAS, AND IN THE WEST YAKUTAT (WYK), SOUTHEAST OUTSIDE (SEO), AND GULFWIDE (GW) DISTRICTS OF THE GULF OF ALASKA. (Values are rounded to the nearest metric ton)

Total Species Area1 ABC TAC Overfishing level

Pollock2 Shumagin (610) 22,930 22,930

Chirikof (620) 26,490 26,490

Kodiak (630) 14,040 14,040

WYK (640) 1,280 1,280

Subtotal W/C/WYK 64,740 64,740 91,060

SEO (650) 6,520 6,520 8,690

Total 71,260 71,260 99,750

Pacific cod3 W 17,406 13,054

C 27,560 20,877

E 3,384 3,046

Total 48,350 36,977 63,950

Flatfish4 (deep-water) W 310 310

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TABLE 2—PROPOSED 2006 ABCS, TACS, AND OVERFISHING LEVELS OF GROUNDFISH FOR THE WESTERN/CENTRAL/ WEST YAKUTAT (W/C/WYK), WESTERN (W), CENTRAL (C), EASTERN (E) REGULATORY AREAS, AND IN THE WEST YAKUTAT (WYK), SOUTHEAST OUTSIDE (SEO), AND GULFWIDE (GW) DISTRICTS OF THE GULF OF ALASKA.—Contin- ued (Values are rounded to the nearest metric ton)

Total Species Area1 ABC TAC Overfishing level

C 2,970 2,970

WYK 1,880 1,880

SEO 910 910

Total 6,070 6,070 8,010

Rex sole W 1,680 1,680

C 7,340 7,340

WYK 1,340 1,340

SEO 2,290 2,290

Total 12,650 12,650 16,480

Flathead sole W 11,111 2,000

C 28,527 5,000

WYK 2,842 2,842

SEO 370 370

Total 42,850 10,212 53,850

Flatfish5 (shallow- W 21,580 4,500 water)

C 27,250 13,000

WYK 2,030 2,030

SEO 1,210 1,210

Total 52,070 20,740 63,840

Arrowtooth flounder W 27,924 8,000

C 179,734 25,000

WYK 12,539 2,500

SEO 10,543 2,500

Total 230,740 38,000 270,050

Sablefish6 W 2,237 2,237

C 5,468 5,468

WYK 1,889 1,889

SEO 2,834 2,834

Subtotal E 4,723 4,723

Total 12,428 12,428 17,633

Pacific ocean perch7 W 2,419 2,419 2,872

C 8,020 8,020 9,526

WYK 779 779

SEO 1,512 1,512

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TABLE 2—PROPOSED 2006 ABCS, TACS, AND OVERFISHING LEVELS OF GROUNDFISH FOR THE WESTERN/CENTRAL/ WEST YAKUTAT (W/C/WYK), WESTERN (W), CENTRAL (C), EASTERN (E) REGULATORY AREAS, AND IN THE WEST YAKUTAT (WYK), SOUTHEAST OUTSIDE (SEO), AND GULFWIDE (GW) DISTRICTS OF THE GULF OF ALASKA.—Contin- ued (Values are rounded to the nearest metric ton)

Total Species Area1 ABC TAC Overfishing level

Subtotal E 2,291 2,722

Total 12,730 12,730 15,120

Shortraker/rougheye8 W 254 254

C 656 656

E 408 408

Total 1,318 1,318 2,510

Other rockfish9,10 W4040

C 300 300

WYK 130 130

SEO 3,430 200

Total 3,900 670 5,150

Northern rock- W 678 678 fish10,11,15

C 3,592 3,592

E N/A N/A

Total 4,270 4,270 5,070

Pelagic shelf rock- W 370 370 fish12

C 3,010 3,010

WYK 210 210

SEO 880 880

Total 4,470 4,470 5,570

Thornyhead rockfish W 410 410

C 1,010 1,010

E 520 520

Total 1,940 1,940 2,590

Big/longnose13 C 4,435 3,284 skates

Other skates14 GW 3,709 3,709

Total 8,144 6,993 10,859

Demersal shelf rock- SEO 450 450 690 fish16

Atka mackerel GW 600 600 6,200

Other species17 GW N/A 12,089 N/A

TOTAL18 514,240 253,867 647,272 1. Regulatory areas and districts are defined at § 679.2.

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2. Pollock is apportioned in the Western/Central Regulatory Areas among three statistical areas. During the A season, the apportionment is based on an adjusted estimate of the relative distribution of pollock biomass at 25 percent, 56 percent, and 19 percent in Statistical Areas 610, 620, and 630, respectively. During the B season, the apportionment is based on the relative distribution of pollock biomass at 25 percent, 66 per- cent, and 9 percent in Statistical Areas 610, 620, and 630, respectively. During the C and D seasons, the apportionment is based on the relative distribution of pollock biomass at 47 percent, 23 percent, and 30 percent in Statistical Areas 610, 620, and 630, respectively. These seasonal ap- portionments are shown in Table 5. In the WestYakutat and SEO Districts of the Eastern Regulatory Area, pollock is not divided into seasonal al- lowances. 3. The annual Pacific cod TAC is apportioned 60 percent to an A season and 40 percent to a B season in the Western and Central Regulatory Areas of the GOA. Pacific cod is allocated 90 percent for processing by the inshore component and 10 percent for processing by the offshore component. Seasonal apportionments and component allocations of TAC are shown in Tables 6 and 7. 4. ‘‘Deep water flatfish’’ means Dover sole, Greenland turbot, and deepsea sole. 5. ‘‘Shallow water flatfish’’ means flatfish not including ‘‘deep water flatfish,’’ flathead sole, rex sole, or arrowtooth flounder. 6. Sablefish is allocated to trawl and hook-and-line gears (Tables 3 and 4). 7. ‘‘Pacific ocean perch’’ means Sebastes alutus. 8. ‘‘Shortraker/rougheye rockfish’’ means Sebastes borealis (shortraker) and S. aleutianus (rougheye). 9. ‘‘Other rockfish’’ in the Western and Central Regulatory Areas and in the West Yakutat District means slope rockfish and demersal shelf rockfish. The category ‘‘other rockfish’’ in the SEO District means Slope rockfish. 10. ‘‘Slope rockfish’’ means Sebastes aurora (aurora), S. melanostomus (blackgill), S. paucispinis (bocaccio), S.goodei (chilipepper), S. crameri (darkblotch), S. elongatus (greenstriped), S. variegatus (harlequin), S. wilsoni (pygmy), S. babcocki (redbanded), S. proriger (redstripe), S. zacentrus (sharpchin), S. jordani (shortbelly), S. brevispinis (silvergrey), S. diploproa (splitnose), S. saxicola (stripetail), S. miniatus (vermilion), and S. reedi (yellowmouth). In the Eastern GOA only, slope rockfish also includes northern rockfish, S. polyspinous. 11. ‘‘Northern rockfish’’ means Sebastes polyspinis. 12. ‘‘Pelagic shelf rockfish’’ means Sebastes ciliatus (dusky), S. entomelas (widow), and S. flavidus (yellowtail). 13. Big skate means Raja binoculata and longnose skate means Raja rhina. 14. Other skates means big and long nose skates in the E and W GOA and Bathyraja spp. Gulfwide. 15. N/A means not applicable. 16. ‘‘Demersal shelf rockfish’’ means Sebastes pinniger (canary), S. nebulosus (china), S. caurinus (copper), S. maliger (quillback), S. helvomaculatus (rosethorn), S. nigrocinctus (tiger), and S. ruberrimus (yelloweye). 17. ‘‘Other species’’ means sculpins, sharks, squid, and octopus. There is no OFL or ABC for ‘‘other species’’, the TAC for ‘‘other species’’ equals 5 percent of the TACs for assessed target species. 18. The total ABC and OFL is the sum of the ABCs and OFLs for assessed target species.

Proposed Apportionment of Reserves Proposed Apportionments of the District of the Eastern Regulatory Area, Sablefish TAC Amounts to Vessels the Council recommended and NMFS Regulations at § 679.20(b)(2) require Using Hook-and-Line and Trawl Gear concurs that 5 percent of the combined 20 percent of each TAC for pollock, Eastern GOA sablefish TAC be allocated Pacific cod, flatfish, and the ‘‘other Under § 679.20(a)(4)(i) and (ii), to trawl gear in the WYK District and species’’ category be set aside in sablefish TACs for each of the regulatory the remainder to vessels using hook- reserves for possible apportionment at a areas and districts are allocated to hook- and-line gear. In the SEO District, 100 later date. In 2004, NMFS reapportioned and-line and trawl gear. In the Western percent of the sablefish TAC is allocated all of the reserves in the final harvest and Central Regulatory Areas, 80 to vessels using hook-and-line gear. The specifications. For 2005 and 2006, percent of each TAC is allocated to Council recommended that only trawl NMFS proposes apportionment of all of hook-and-line gear, and 20 percent of sablefish TAC be established biennially. the reserve for pollock, Pacific cod, each TAC is allocated to trawl gear. In This recommendation results in an flatfish, and ‘‘other species.’’ the Eastern Regulatory Area, 95 percent allocation of 254 mt to trawl gear and Specifications of TAC shown in Tables of the TAC is allocated to hook-and-line 1,782 mt to hook-and-line gear in the 1 and 2 reflect apportionment of reserve gear, and 5 percent is allocated to trawl WYK District, of 3,053 mt to hook-and- amounts for these species and species gear. The trawl gear allocation in the line gear in the SEO District in 2005, groups. Eastern Regulatory Area may only be and of 236 mt to trawl gear in the WYK used to support incidental catch of District in 2006. Tables 3 and 4 shows sablefish in directed fisheries for other the allocations of the proposed 2005 and target species (see § 679.20(a)(1)). In 2006 sablefish TACs between hook-and- recognition of the trawl ban in the SEO line and trawl gear.

TABLE 3—PROPOSED 2005 SABLEFISH TAC SPECIFICATIONS IN THE GULF OF ALASKA AND ALLOCATIONS THEREOF TO HOOK-AND-LINE AND TRAWL GEAR. (Values are rounded to the nearest metric ton)

Area/District TAC Hook-and-line apportionment Trawl apportionment

Western 2,411 1,929 482 Central 5,892 4,714 1,178 West Yakutat 2,036 1,782 254 Southeast Outside 3,053 3,053 0

Total 13,392 11,478 1,914

TABLE 4—PROPOSED 2006 SABLEFISH TAC SPECIFICATIONS IN THE GULF OF ALASKA AND ALLOCATIONS THEREOF TO TRAWL GEAR. (Values are rounded to the nearest metric ton)

Area/District TAC Hook-and-line apportionment1 Trawl apportionment

Western 2,237 n/a 447

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TABLE 4—PROPOSED 2006 SABLEFISH TAC SPECIFICATIONS IN THE GULF OF ALASKA AND ALLOCATIONS THEREOF TO TRAWL GEAR.—Continued (Values are rounded to the nearest metric ton)

Area/District TAC Hook-and-line apportionment1 Trawl apportionment

Central 5,468 n/a 1,094 West Yakutat 1,889 n/a 236 Southeast Outside 2,834 n/a 0

Total 12,428 n/a 1,777 1The Council recommended that specifications for the hook-and-line gear sablefish IFQ fisheries be limited to 1 year to ensure that those fish- eries are conducted concurrent with the halibut IFQ fishery.

Proposed Apportionments of Pollock determined by the four most recent among four seasons, the 20 percent TAC Among Seasons and Regulatory NMFS summer surveys. As in 2004, the seasonal apportionment rollover limit Areas, and Allocations for Processing Council recommended that during the A would be equivalent annually to the 30– by Inshore and Offshore Components season, the winter and summer percent annual rollover limit currently distribution of pollock be averaged in in the regulations. The WYK and SEO In the GOA, pollock is apportioned by the Central Regulatory Area to better District pollock TACs of 1,280 mt and season and area, and is further allocated reflect the distribution of pollock and 6,520 mt, respectively, are not allocated for processing by inshore and offshore the performance of the fishery in the seasonally. components. Under regulations at area during the A season for the 2005 § 679.20(a)(5)(iii)(B), the annual pollock Section 679.20(a)(6)(i) requires that and 2006 fishing years. Within any 100 percent of the pollock TAC in all TAC specified for the Western and fishing year, the underage or overage of Central Regulatory Areas of the GOA is regulatory areas and of all seasonal a seasonal allowance may be added to allowances be allocated to vessels apportioned into four equal seasonal or subtracted from subsequent seasonal catching pollock for processing by the allowances of 25 percent. As established allowances in a manner to be inshore component after subtraction of by § 679.23(d)(2)(i) through (iv), the A, determined by the Regional amounts that are projected by the B, C, and D season allowances are Administrator, provided that the sum of Regional Administrator to be caught by, available from January 20 through the revised seasonal allowances does or delivered to, the offshore component February 25, March 10 through May 31, not exceed 30 percent of the annual incidental to directed fishing for other August 25 through September 15, and TAC apportionment for the Central and groundfish species. The amount of October 1 through November 1, Western Regulatory Areas in the GOA pollock available for harvest by vessels respectively. As discussed previously, if (§ 679.20(a)(5)(iii)(B)). For 2005 and harvesting pollock for processing by the the proposed revision of Steller sea lion 2006, 30 percent of the proposed annual protection measures (69 FR 56384, TAC for the Central and Western offshore component is that amount September 21, 2004) is approved, the A Regulatory Areas is 19,308 mt. As actually taken as incidental catch during season dates would be changed to discussed previously, approval of the directed fishing for groundfish species January 20 through March 10 and the C proposed revision to Steller sea lion other than pollock, up to the maximum season dates would be changed to protection measures would alter the retainable amounts allowed under August 25 through October 1. way NMFS handles rollovers. The § 679.20(e) and (f). At this time, these Pollock TACs in the Western and rollover amount would be limited to 20 incidental catch amounts are unknown Central Regulatory Areas of the GOA in percent of the seasonal apportionment and will be determined during the the A and B seasons are apportioned for the statistical area. Any unharvested fishing year. among statistical areas 610, 620, and pollock above the 20 percent limit could The proposed seasonal biomass 630 in proportion to the distribution of be further distributed to the other distribution of pollock in the Western pollock biomass as determined by a statistical areas, in proportion to the and Central GOA, area apportionments, composite of NMFS winter surveys and estimated biomass in the subsequent and seasonal apportionments for the A, in the C and D seasons in proportion to season in those statistical areas. Because B, C, and D seasons are summarized in the distribution of pollock biomass as the harvest of pollock is apportioned Table 5.

TABLE 5—PROPOSED 2005 AND 2006 DISTRIBUTION OF POLLOCK IN THE CENTRAL AND WESTERN REGULATORY AREAS OF THE GULF OF ALASKA; SEASONAL BIOMASS DISTRIBUTION, AREA APPORTIONMENTS; AND SEASONAL ALLOWANCES OF ANNUAL TAC. (Values are rounded to the nearest metric ton)

Biomass Distribution Season Shumagin (Area 610) Chirikof (Area 620) Kodiak (Area 630) Total

A 3,747 (23.63%) 9,027 (56.9%) 3,091 (19.48%) 15,865 (100%) B 3,748 (23.63%) 10,704 (67.47%) 1,413 (8.91%) 15,865 (100%) C 7,717 (48.64%) 3,380 (21.3%) 4,768 (30.06%) 15,865 (100%) D 7,718 (48.64%) 3,379 (21.33%) 4,768 (30.06%) 15,865 (100%)

Annual Total 22,930 26,490 14,040 63,460

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Proposed Seasonal Apportionments of will be apportioned between the inshore Section 679.20(a)(6)(ii) requires that Pacific Cod TAC and Allocations for and offshore processing components as the TAC apportionment of Pacific cod in Processing of Pacific Cod TAC Between provided in § 679.20(a)(6)(ii). Between all regulatory areas be allocated to Inshore and Offshore Components the A and the B seasons, directed vessels catching Pacific cod for fishing for Pacific cod is closed, and processing by the inshore and offshore Pacific cod fishing is divided into two fishermen participating in other components. Ninety percent of the seasons in the Western and Central directed fisheries may retain Pacific cod Pacific cod TAC in each regulatory area Regulatory Areas of the GOA. For hook- up to the maximum retainable amounts is allocated to vessels catching Pacific and-line, pot and jig gear, the A season allowed under § 679.20(e) and (f). For cod for processing by the inshore is January 1 through June 10, and the B purposes of clarification, NMFS points component. The remaining 10 percent season is September 1 through out that the dates for the A season and of the TAC is allocated to vessels December 31. For trawl gear, the A the B season Pacific cod fisheries differ catching Pacific cod for processing by season is January 20 through June 10, from those of the A, B, C, and D seasons and the B season is September 1 through for the pollock fisheries. In accordance the offshore component. These seasonal November 1, (§ 679.23(d)(3)). After with § 679.20(a)(11)(ii), any overage or apportionments and allocations of the subtraction of incidental catch, 60 underage of Pacific cod allowance from proposed 2005 and 2006 Pacific cod percent and 40 percent of the annual the A season may be subtracted from or TACs are shown in Tables 6 and 7, TAC will be available for harvest during added to the subsequent B season respectively. the A and B seasons, respectively, and allowance.

TABLE 6—PROPOSED 2005 SEASONAL APPORTIONMENTS AND ALLOCATION OF PACIFIC COD TAC AMOUNTS IN THE GULF OF ALASKA; ALLOCATIONS FOR PROCESSING BY THE INSHORE AND OFFSHORE COMPONENTS. (Values are rounded to the nearest metric ton)

Component allocation Season Regulatory area TAC Inshore (90%) Offshore (10%)

Western 15,903 14,313 1,590 A season (60%) 9,542 8,588 954 B season (40%) 6,361 5,726 635

Central 25,432 22,889 2,543 A season (60%) 15,259 13,733 1,526 B season (40%) 10,173 9,156 1,017

Eastern 3,711 3,340 371

Total 45,046 40,542 4,504

TABLE 7—PROPOSED 2006 SEASONAL APPORTIONMENTS AND ALLOCATION OF PACIFIC COD TAC AMOUNTS IN THE GULF OF ALASKA; ALLOCATIONS FOR PROCESSING BY THE INSHORE AND OFFSHORE COMPONENTS. (Values are rounded to the nearest metric ton)

Component allocation Season Regulatory area TAC Inshore (90%) Offshore (10%)

Western 13,054 11,749 1,305 A season (60%) 7,832 7,049 783 B season (40%) 5,222 4,700 522

Central 20,877 18,789 2,088 A season (60%) 12,526 11,273 1,253 B season (40%) 8,351 7,516 835

Eastern 3,046 2,741 305

Total 36,977 33,279 3,698

Proposed Halibut PSC Limits and 300 mt for the hook-and-line of its small scale harvests. Although fisheries, with 10 mt of the hook-and- observer data are not available to verify In accordance with regulations at line limit allocated to the demersal shelf actual bycatch amounts, given most § 679.21(d), annual halibut PSC limits rockfish (DSR) fishery in the SEO vessels in the DSR fishery are less than are established and apportioned to trawl District and the remainder to the 60 ft (18.3 m) length overall (LOA) and and hook-and-line gear and may be remaining hook-and-line fisheries for thus are exempt from observer coverage, established for pot gear. In October the 2005 and 2006 groundfish fisheries. halibut bycatch in the DSR fishery is 2004, the Council recommended that Historically, the DSR fishery, defined at assumed to be low because of the short NMFS maintain the 2004 halibut PSC § 679.21(d)(4)(iii)(A), has been soak times for the gear and duration of limits of 2,000 mt for the trawl fisheries apportioned this amount in recognition the DSR fishery. Also, the DSR fishery

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occurs in the winter when less overlap mortality is assumed to be very low, seasons, (6) expected actual start of occurs in the distribution of DSR and given the small amount of groundfish fishing effort, and (7) economic effects halibut. harvested by jig gear (336 mt in 2001, of establishing seasonal halibut Section 679.21(d)(4) authorizes the 277 mt in 2002, and 294 mt in 2003), allocations on segments of the target exemption of specified non-trawl and survival rates of any halibut groundfish industry. fisheries from the halibut PSC limit. The incidentally caught by jig gear and The final 2004 groundfish and PSC Council recommended that pot gear, jig released are assumed to be high. gear, and the hook-and-line sablefish Under § 679.21(d)(5), NMFS specifications (69 FR 9261, February 27, fishery be exempted from the non-trawl seasonally apportions the halibut PSC 2004) summarized the Council and halibut limit for 2005 and 2006. The limits based on recommendations from NMFS findings with respect to each of Council recommended these the Council. The FMP and regulations the FMP considerations set forth here. exemptions because (1) the pot gear require that the Council and NMFS At this time, the Council’s and NMFS’ fisheries experience low halibut bycatch consider the following information in findings are unchanged from those set mortality (4 mt in 2001, 2 mt in 2002, seasonally apportioning halibut PSC forth in 2004. The proposed Pacific 14 mt in 2003, and 23 mt through limits: (1) seasonal distribution of halibut PSC limits and apportionments October 9, 2004); (2) the Individual halibut, (2) seasonal distribution of for 2005 and 2006 are presented in Fishing Quota (IFQ) program requires target groundfish species relative to Table 8. Section 679.21, paragraphs legal-sized halibut to be retained by halibut distribution, (3) expected (d)(5)(iii) and (d)(5)(iv) specify that any vessels using hook-and-line gear if a halibut bycatch needs on a seasonal underages or overages in a seasonal halibut IFQ permit holder is aboard and basis relative to changes in halibut apportionment of a PSC limit will be is holding unused halibut IFQ; and (3) biomass and expected catch of target deducted from or added to the next halibut mortality for the jig gear fleet groundfish species, (4) expected bycatch respective seasonal apportionment cannot be estimated because these rates on a seasonal basis, (5) expected within the 2005 and 2006 fishing years. vessels do not carry observers. Halibut changes in directed groundfish fishing

TABLE 8—PROPOSED 2005 AND 2006 PACIFIC HALIBUT PSC LIMITS, ALLOWANCES, AND APPORTIONMENTS. THE PACIFIC HALIBUT PSC LIMIT FOR HOOK-AND-LINE GEAR IS ALLOCATED TO THE DEMERSAL SHELF ROCKFISH (DSR) FISHERY AND FISHERIES OTHER THAN DSR. THE HOOK-AND-LINE SABLEFISH FISHERY IS EXEMPT FROM HALIBUT PSC LIMITS. (Values are in metric tons)

Trawl gear Hook-and-line gear Other than DSR DSR Dates Amount Dates Amount Date Amount

January 20 - April 1 550 (27.5%) January 1 - June 10 250 (86%) January 1 - December 31 10 (100%) April 1 - July 1 400 (20%) June 10 - September 1 5 (2%) July 1 - September 1 600 (30%) September 1 - December 31 35 (12%) September 1 - October 1 150 (7.5%) October 1 - December 31 300 (15%) Total: 2,000 (100%) 290 (100%) 10 (100%)

Section 679.21(d)(3)(ii) authorizes harvest under the halibut PSC limit. The shallow-water flatfish, flathead sole, apportionments of the trawl halibut PSC fishery categories for the trawl halibut Atka mackerel, skates, and ‘‘other limit to be further apportioned to trawl PSC limits are (1) a deep-water species species’’ (see § 679.21(d)(3)(iii)). The fishery categories, based on each complex, comprised of sablefish, proposed 2005 and 2006 apportionment category’s proportional share of the rockfish, deep-water flatfish, rex sole for these two fishery complexes is anticipated halibut bycatch mortality and arrowtooth flounder; and (2) a presented in Table 9. during a fishing year and the need to shallow-water species complex, optimize the total amount of groundfish comprised of pollock, Pacific cod,

TABLE 9—PROPOSED 2005 AND 2006 APPORTIONMENT OF PACIFIC HALIBUT PSC TRAWL LIMITS BETWEEN THE TRAWL GEAR DEEP-WATER SPECIES COMPLEX AND THE SHALLOW-WATER SPECIES COMPLEX. (Values are in metric tons)

Season Shallow-water Deep-water Total

January 20 - April 1 450 100 550 April 1 - July 1 100 300 400 July 1 - September 1 200 400 600 September 1 - October 1 150 Any remainder 150 Subtotal January 20 - October 1 900 800 1,700

October 1 - December 31 ------300

Total ------2,000 No apportionment between shallow-water and deep-water fishery complexes during the 5th season (October 1 - December 31).

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Based on public comment and in 2005 and about 7 percent in 2006 estimates of exploitable biomass in information contained in the final 2004 from the 2004 TAC total of 271,776 mt. those areas are lower because they are SAFE report, which will be available in Those fisheries for which the 2005 and computed with an updated set of length- December 2004, the Council may 2006 TACs are lower than those in 2004 specific commercial selectivities that recommend, or NMFS may make, are Pacific cod (decreased to 45,046 mt accurately represent the lower size at changes in the seasonal, gear-type, or in 2005 and 36,977 mt in 2006 from age and the presence of a large number fishing-complex apportionments of 48,003 mt in 2004), flathead sole of small males. While the trajectory of halibut PSC limits for the final 2005 and (decreased to 10,382 mt in 2005 and the halibut stock biomass is downward, 2006 harvest specifications. NMFS will 10,212 mt in 2006 from 10,880 mt in the biomass is still above the long-term consider the following types of 2004), sablefish (decreased to 13,392 mt average level and is expected to remain information in setting final halibut PSC in 2005 and 12,428 mt in 2006 from above this level for the next several limits. 16,550 mt in 2004), northern rockfish years. (decreased to 4,600 mt in 2005 and The 2004 catch limits are based on the Estimated Halibut Bycatch in Prior 4,270 mt in 2006 from 4,870 mt in Commission’s existing Constant Years 2004), Pacific ocean perch (decreased to Exploitation Yield harvest policy. Over The best available information on 13,100 mt in 2005 and 12,730 mt in the coming year, IPHC staff will estimated halibut bycatch is data 2006 from 13,340 mt in 2004), and continue to investigate a new harvest collected by observers during 2004. The ‘‘other species’’ (decreased to 12,584 mt policy, the Conditional Constant Catch calculated halibut bycatch mortality by in 2005 and 12,089 mt in 2006 from (CCC) policy, which may result in trawl, hook-and-line, and pot gear 12,942 mt in 2004). greater stability in the yield from the through October 9, 2004, is 2,271 mt, fishery and insulate the process of Current Estimates of Halibut Biomass 295 mt, and 23 mt, respectively, for a setting catch limits from technological and Stock Condition total halibut mortality of 2,589 mt. changes in the assessment. Halibut bycatch restrictions The most recent halibut stock Additional information on the Pacific constrained trawl gear fisheries assessment was conducted by the halibut stock assessment and the CCC seasonally during the 2004 fishing year. International Pacific Halibut harvest policy may be found in the Trawling closed during the fourth Commission (IPHC) in December 2003. IPHC’s 2003 Pacific halibut stock season for the shallow-water complex The halibut resource is considered to be assessment (December 2003), available on September 10 (69 FR 55783, healthy, with total catch near record from the IPHC and on its website at September 16, 2004, 2003); trawling levels. The current exploitable halibut www.iphc.washington.edu. The IPHC closed during the first season for the biomass in Alaska for 2004 was will consider the 2004 Pacific halibut deep-water fishery complex on March estimated to be 215,912 mt. assessment for 2005 at its January 2005 19 (69 FR 12980, March 19, 2004), The exploitable biomass of the Pacific annual meeting when it sets the 2005 during the second season on April 26 halibut stock apparently peaked at commercial halibut fishery quotas. 326,520 mt in 1988. According to the (69 FR 23450, April 29, 2004), during Other Factors the third and fourth seasons on July 25 IPHC, the long-term average (69 FR 44973, July 28, 2004), and during reproductive biomass for the Pacific The allowable commercial catch of the fifth season for all trawling for the halibut resource was estimated at halibut will be adjusted to account for remainder of the year on October 1 (69 118,000 mt. Long-term average yield the overall halibut PSC mortality limit FR 57655, September 27, 2004). The use was estimated at 26,980 mt, round established for groundfish fisheries. The of hook-and-line for groundfish, other weight. The species is fully utilized. 2005 and 2006 groundfish fisheries are than DSR and sablefish, closed during Recent average catches (1994–2003) in expected to use the entire proposed the third season for the remainder of the the commercial halibut fisheries in annual halibut PSC limit of 2,300 mt. year on October 2 (69 FR 59835, October Alaska have averaged 34,100 mt, round The allowable directed commercial 6, 2004). weight. This catch in Alaska is 26 catch is determined by accounting for The amount of groundfish that trawl percent higher than long-term potential the recreational and subsistence catch, gear might have harvested if halibut yield for the entire halibut stock, which waste, and bycatch mortality and then catch limitations had not restricted the reflects the good condition of the Pacific providing the remainder to the directed season in 2004 is unknown. halibut resource. In January 2004, the fishery. Groundfish fishing is not IPHC recommended commercial catch expected to adversely affect the halibut Expected Changes in Groundfish Stocks limits totaling 37,029 mt (round weight stocks. Methods available for reducing Proposed 2005 and 2006 ABCs for equivalents) for Alaska in 2004. halibut bycatch include (1) publication arrowtooth flounder are higher than Through December 31, 2003, of individual vessel bycatch rates on the those established for 2004. The Council commercial hook-and line harvests of NMFS Alaska Region website at adopted lower 2005 and 2006 ABCs for halibut in Alaska totaled 37,723 mt www.fakr.noaa.gov; (2) modifications to Pacific cod, flathead sole, sablefish, (round weight equivalents). gear, (3) changes in groundfish fishing northern rockfish, and Pacific ocean The December 2003 assessment of the seasons, (4) individual transferable perch. For the remaining targets the halibut stock contains a number of quota programs, and (5) time/area Council recommended that ABC levels major changes including the adoption of closures. remain unchanged from 2004. More length-specific in place of age-specific Reductions in groundfish TAC information on these changes is selectivities, separate accounting of amounts provide no incentive for included in the final SAFE report females and males, allowance for the fishermen to reduce bycatch rates. Costs (November 2003) and in the Council bias and variance of age readings, and, that would be imposed on fishermen as and SSC October 2004 meeting minutes. for the first time, analytical rather than a result of reducing TAC amounts survey-based estimates of abundance in depend on the species and amounts of Expected Changes in Groundfish Catch Areas 3B, 4A, and 4B. Estimates of groundfish foregone. The total TAC amounts for the GOA average recruitment (1974–2004) in In § 679.2, the definition of are 264,265 mt for 2005, and 253,867 mt Areas 2C and 3A are higher than those Authorized fishing gear, paragraph 12, for 2006, a decrease of about 3 percent last year by 20 to 50 percent, but specifies requirements for biodegradable

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panels and tunnel openings for rate. The DMRs proposed for 2005 and TABLE 10—PROPOSED 2005 AND groundfish pots to reduce halibut 2006 are unchanged from those used in 2006 HALIBUT DISCARD MORTALITY bycatch. As a result, low bycatch and 2004 in the GOA. The DMRs for hook- RATES FOR VESSELS FISHING IN THE mortality rates of halibut in pot fisheries and-line targeted fisheries range from 8 GULF OF ALASKA.—Continued have justified exempting pot gear from to 13 percent. The DMRs for trawl (Listed values are percent of halibut bycatch PSC limits. targeted fisheries range from 57 to 75 assumed to be dead.) The regulations also define ‘‘Pelagic percent. The DMRs for all pot targeted trawl gear’’ in a manner intended to fisheries are 17 percent. The proposed Mortality reduce bycatch of halibut by displacing DMRs for 2005 and 2006 are listed in Gear Target Rate fishing effort off the bottom of the sea Table 10. The justification for these floor when certain halibut bycatch DMRs is discussed in Appendix B to the Skates 17 levels are reached during the fishing final SAFE report dated November 2003. year. The definition provides standards Pacific cod 17 for physical conformation (§ 679.2, see TABLE 10—PROPOSED 2005 AND Non-exempt American Fisheries Act ‘‘Authorized fishing gear,’’ paragraph 2006 HALIBUT DISCARD MORTALITY 11) and performance of the trawl gear in (AFA) Catcher Vessel Groundfish RATES FOR VESSELS FISHING IN THE terms of crab bycatch (§ 679.7(a)(14)). Harvest and PSC Limitations GULF OF ALASKA. Furthermore, all hook-and-line vessel Regulations at § 679.64 established operators are required to employ careful (Listed values are percent of halibut bycatch assumed to be dead.) groundfish harvesting and processing release measures when handling halibut sideboard limitations on AFA catcher/ bycatch (§ 679.7(a)(13)). These measures Mortality processors and catcher vessels in the are intended to reduce handling Gear Target Rate GOA. These sideboard limitations are mortality, thereby lowering overall necessary to protect the interests of halibut bycatch mortality in the Hook-and- Other spe- 13 fishermen and processors who have not groundfish fisheries, and to increase the line cies directly benefited from the AFA from amount of groundfish harvested under fishermen and processors who have Skates 13 the available halibut mortality bycatch received exclusive harvesting and limits. processing privileges under the AFA. NMFS and the Council will review Pacific cod 13 Under the AFA regulations at § 679.4 the methods available for reducing Rockfish 8 (l)(2)(i), listed AFA catcher/processors halibut bycatch listed here to determine are prohibited from fishing for any their effectiveness and will initiate Trawl Arrowtooth 69 species of fish (see § 679.7(k)(1)(ii)) and changes, as necessary, in response to flounder from processing any groundfish this review or to public testimony and harvested in Statistical Area 630 of the comment. Atka mack- 60 erel GOA (see § 679.7(k)(1)(iv)). The Council Halibut Discard Mortality Rates recommended that certain AFA catcher The Council recommends and NMFS Deep-water 57 vessels in the GOA be exempt from concurs that the recommended halibut flatfish groundfish harvest limitations. The AFA discard mortality rates (DMRs) regulations exempt AFA catcher vessels developed by the staff of the IPHC for Flathead 62 in the GOA less than 125 ft (38.1 m) sole the 2004 GOA groundfish fisheries be LOA whose annual BSAI pollock landings totaled less than 5,100 mt and used to monitor halibut bycatch Nonpelagic 59 mortality limits established for the 2005 pollock that made 40 or more GOA groundfish and 2006 GOA groundfish fisheries. The landings from 1995 through 1997 (see IPHC recommended the use of long-term Other spe- 61 § 679.64(b)(2)(ii)). average DMRs for the 2004–2006 cies For non-exempt AFA catcher vessels groundfish fisheries. The IPHC in the GOA, sideboards limitations are recommendation also includes a Skates 61 based on their traditional harvest levels provision that DMRs could be revised of TAC in groundfish fisheries covered Pacific cod 61 should analysis indicate that a fishery’s by the GOA FMP. The AFA regulations annual DMR deviates substantially (up Pelagic pol- 75 base the groundfish sideboard or down) from the long-term average. lock limitations in the GOA on the retained Most of the IPHC’s analysis assumed catch by non-exempt AFA catcher DMRs were based on an average of Rex sole 62 vessels of each sideboard species from mortality rates determined from NMFS 1995 through 1997 divided by the TAC observer data collected between 1993 Rockfish 67 for that species over the same period and 2002. DMRs were lacking for some (§ 679.64(b)(3)(iii)). These amounts are fisheries; in those instances rates from Sablefish 62 listed in Table 11 for 2005 and in Table the most recent years were used. For the Shallow- 68 12 for 2006. All harvests of sideboard ‘‘other species’’ and skate fisheries, water flatfish species made by non-exempt AFA where insufficient mortality data are catcher vessels, whether as targeted available, the mortality rate of halibut Pot Other spe- 17 catch or as incidental catch, will be caught in the Pacific cod fishery for that cies deducted from the sideboard limits in gear type was recommended as a default Tables 11 and 12.

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TABLE 11—PROPOSED 2005 GOA NON-EXEMPT AMERICAN FISHERIES ACT CATCHER VESSEL (CV) GROUNDFISH HARVEST SIDEBOARD LIMITATIONS. (Values are in metric tons)

Ratio of 1995–1997 non-ex- Species Apportionments and allocations by area/ empt AFA CV catch to 2005 TAC 2005 non-exempt AFA catch- season/processor/gear 1995–1997 TAC er vessel sideboard

Pollock A Season (W/C areas only) January 20 - February 25 Shumagin (610) 0.6112 3,747 2,290 Chirikof (620) 0.1427 9,027 1,288 Kodiak (630) 0.2438 3,091 754

B Season (W/C areas only) March 10 - May 31 Shumagin (610) 0.6112 3,748 2,291 Chirikof (620) 0.1427 10,704 1,527 Kodiak (630) 0.2438 1,413 344

C Season (W/C areas only) August 25 - September 15 Shumagin (610) 0.6112 7,717 4,717 Chirikof (620) 0.1427 3,380 482 Kodiak (630) 0.2438 4,768 1,162

D Season (W/C areas only) October 1 - November 1 Shumagin (610) 0.6112 7,717 3,362 Chirikof (620) 0.1427 3,379 383 Kodiak (630) 0.2438 4,768 1,162

Annual WYK (640) 0.3499 1,280 448 SEO (650) 0.3499 6,520 2,281

Pacific cod A Season1 January 1 - June 10 W inshore 0.1423 8,588 1,222 W offshore 0.1026 954 98 C inshore 0.0722 13,733 992 C offshore 0.0721 1,526 110

B Season2 September 1 - December 31 W inshore 0.1423 5,726 815 W offshore 0.1026 636 65 C inshore 0.0722 9,156 661 C offshore 0.0721 1,071 77

Annual E inshore 0.0079 3,340 26 E offshore 0.0078 371 3

Flatfish deep- W 0.0000 310 0 water C 0.0670 2,970 199 E 0.0171 2,790 48

Rex sole W 0.0010 1,680 2 C 0.0402 7,340 295 E 0.0153 3,630 56

Flathead sole W 0.0036 2,000 7 C 0.0261 5,000 131 E 0.0048 3,382 16

Flatfish shal- W 0.0156 4,500 70 low-water C 0.0598 13,000 777 E 0.0126 3,240 41

Arrowtooth W 0.0021 8,000 17 flounder C 0.0309 25,000 773

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TABLE 11—PROPOSED 2005 GOA NON-EXEMPT AMERICAN FISHERIES ACT CATCHER VESSEL (CV) GROUNDFISH HARVEST SIDEBOARD LIMITATIONS.—Continued (Values are in metric tons)

Ratio of 1995–1997 non-ex- Species Apportionments and allocations by area/ empt AFA CV catch to 2005 TAC 2005 non-exempt AFA catch- season/processor/gear 1995–1997 TAC er vessel sideboard

E 0.0020 5,000 10

Sablefish W trawl gear 0.0000 482 0 C trawl gear 0.0720 1,178 85 E trawl gear 0.0488 254 12

Pacific ocean W 0.0623 2,489 155 perch C 0.0866 8,253 715 E 0.0466 2,358 110

Shortraker/ W 0.0000 254 0 Rougheye C 0.0237 656 16 E 0.0124 408 5

Other rockfish W 0.0034 40 0 C 0.2065 300 62 E 0.0000 330 0

Northern rock- W 0.0003 730 0 fish C 0.0336 3,870 130

Pelagic shelf W 0.0001 370 0 rockfish C 0.0000 3,010 0 E 0.0067 1,090 7

Thornyhead W 0.0308 410 13 rockfish C 0.0308 1,010 31 E 0.0308 520 16

Big and C 0.0090 3,284 30 Longnose skates

Other skates GW 0.0090 3,709 33

Demersal shelf SEO 0.0020 450 1 rockfish

Atka mackerel Gulfwide 0.0309 600 19

Other species Gulfwide 0.0090 12,584 113 1 The Pacific cod A season for trawl gear does not open until January 20. 2 The Pacific cod B season for trawl gear closes November 1.

TABLE 12—PROPOSED 2006 GOA NON-EXEMPT AMERICAN FISHERIES ACT CATCHER VESSEL (CV) GROUNDFISH HARVEST SIDEBOARD LIMITATIONS. (Values are in metric tons)

Ratio of 1995–1997 non- Species Apportionments and allocations by area/ exempt AFA CV catch to 2006 TAC 2006 non-exempt AFA season/processor/gear 1995–1997 TAC catcher vessel sideboard

Pollock A Season (W/C areas only) January 20 - February 25 Shumagin (610) 0.6112 3,747 2,290 Chirikof (620) 0.1427 9,027 1,288 Kodiak (630) 0.2438 3,091 754

B Season (W/C areas only) March 10 - May 31 Shumagin (610) 0.6112 3,748 2,291 Chirikof (620) 0.1427 10,704 1,527

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TABLE 12—PROPOSED 2006 GOA NON-EXEMPT AMERICAN FISHERIES ACT CATCHER VESSEL (CV) GROUNDFISH HARVEST SIDEBOARD LIMITATIONS.—Continued (Values are in metric tons)

Ratio of 1995–1997 non- Species Apportionments and allocations by area/ exempt AFA CV catch to 2006 TAC 2006 non-exempt AFA season/processor/gear 1995–1997 TAC catcher vessel sideboard

Kodiak (630) 0.2438 1,413 344

C Season (W/C areas only) August 25 - September 15 Shumagin (610) 0.6112 7,717 4,717 Chirikof (620) 0.1427 3,380 482 Kodiak (630) 0.2438 4,768 1,162

D Season (W/C areas only) October 1 - November 1 Shumagin (610) 0.6112 7,717 3,362 Chirikof (620) 0.1427 3,379 383 Kodiak (630) 0.2438 4,768 1,162

Annual WYK (640) 0.3499 1,280 448 SEO (650) 0.3499 6,520 2,281

Pacific cod A Season1 January 1 - June 10 W inshore 0.1423 7,292 1,038 W offshore 0.1026 810 83 C inshore 0.0722 11,273 814 C offshore 0.0721 1,253 90

B Season2 September 1 - December 31 W inshore 0.1423 4,457 634 W offshore 0.1026 495 51 C inshore 0.0722 7,516 543 C offshore 0.0721 835 60

Annual E inshore 0.0079 2,741 22 E offshore 0.0078 305 2

Flatfish deep- W 0.0000 310 0 water C 0.0670 2,970 199 E 0.0171 2,790 48

Rex sole W 0.0010 1,680 2 C 0.0402 7,340 295 E 0.0153 3,630 56

Flathead sole W 0.0036 2,000 7 C 0.0261 5,000 131 E 0.0048 3,212 15

Flatfish shallow- W 0.0156 4,500 70 water C 0.0598 13,000 777 E 0.0126 3,240 41

Arrowtooth floun- W 0.0021 8,000 17 der C 0.0309 25,000 773 E 0.0020 5,000 10

Sablefish W trawl gear 0.0000 447 0 C trawl gear 0.0720 1,094 79 E trawl gear 0.0488 236 12

Pacific ocean W 0.0623 2,419 151 perch C 0.0866 8,020 695 E 0.0466 2,291 107

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TABLE 12—PROPOSED 2006 GOA NON-EXEMPT AMERICAN FISHERIES ACT CATCHER VESSEL (CV) GROUNDFISH HARVEST SIDEBOARD LIMITATIONS.—Continued (Values are in metric tons)

Ratio of 1995–1997 non- Species Apportionments and allocations by area/ exempt AFA CV catch to 2006 TAC 2006 non-exempt AFA season/processor/gear 1995–1997 TAC catcher vessel sideboard

Shortraker/ W 0.0000 254 0 Rougheye C 0.0237 656 16 E 0.0124 408 5

Other rockfish W 0.0034 40 0 C 0.2065 300 62 E 0.0000 330 0

Northern rockfish W 0.0003 678 0 C 0.0336 3,592 121

Pelagic shelf rock- W 0.0001 370 0 fish C 0.0000 3,010 0 E 0.0067 1,090 7

Thornyhead rock- W 0.0308 410 13 fish C 0.0308 1,010 31 E 0.0308 520 16

Big and Longnose C 0.0090 3,284 30 skates

Other skates GW 0.0090 3,709 33

Demersal shelf SEO 0.0020 450 1 rockfish

Atka mackerel Gulfwide 0.0309 600 19

Other species Gulfwide 0.0090 12,089 109 1The Pacific cod A season for trawl gear does not open until January 20. 2The Pacific cod B season for trawl gear closes November 1.

PSC sideboard limitations for non- exempt AFA catcher vessels in each through 1997 (see § 679.64(b)(4)). These exempt AFA catcher vessels in the GOA PSC target category from 1995 through amounts are shown in Table 13. are based on the ratio of aggregate 1997 relative to the retained catch of all retained groundfish catch by non- vessels in that fishery from 1995

TABLE 13—PROPOSED 2005 AND 2006 NON-EXEMPT AMERICAN FISHERIES ACT CATCHER VESSEL PROHIBITED SPECIES CATCH (PSC) LIMITS FOR THE GOA. (Values are in metric tons)

Ratio of 1995–1997 non-exempt AFA CV 2005 and 2005 and 2006 non- PSC species Season Target fishery retained catch to total 2006 PSC exempt AFA catcher retained catch limit vessel PSC limit

Halibut (mor- Trawl 1st seasonal allowance shallow water targets 0.340 450 153 tality in mt) January 20 - April 1 deep water targets 0.070 100 7

Trawl 2nd seasonal allowance shallow water targets 0.340 100 34 April 1 - July 1 deep water targets 0.070 300 21

Trawl 3rd seasonal allowance shallow water targets 0.340 200 68 July 1 - September 1 deep water targets 0.070 400 28

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TABLE 13—PROPOSED 2005 AND 2006 NON-EXEMPT AMERICAN FISHERIES ACT CATCHER VESSEL PROHIBITED SPECIES CATCH (PSC) LIMITS FOR THE GOA.—Continued (Values are in metric tons)

Ratio of 1995–1997 non-exempt AFA CV 2005 and 2005 and 2006 non- PSC species Season Target fishery retained catch to total 2006 PSC exempt AFA catcher retained catch limit vessel PSC limit

Trawl 4th seasonal allowance shallow water targets 0.340 150 51 September 1 - October 1 deep water targets 0.070 0 0

Trawl 5th seasonal allowance all targets 0.205 300 61 October 1 - December 31

Classification sablefish impacts would affect 443 small associated with larger gross revenues for catcher vessels and catcher-processors, NMFS has determined that the the GOA fisheries. Many of the vessels with average gross revenues of proposed specifications are consistent identified above would share in these $291,000, and decrease their gross with the FMP and preliminarily gross revenues. However, the maxFABC revenues by a maximum of 10 percent. determined that the proposed is to a fishing rate which may, and often The Pacific cod impacts would affect specifications are consistent with the does, exceed biologically recommended 464 catcher vessels and catcher- Magnuson-Stevens Act and other ABCs. For the pollock, deep-water, processors, with average gross revenues applicable laws. flatfish, rex sole, sablefish, Pacific of $273,000, and decrease their gross Ocean perch, shortraker and rougheye An IRFA was prepared to evaluate the revenues by a maximum of 8 percent. rockfish, northern rockfish, pelagic shelf impacts of the 2005 and 2006 proposed Smaller impacts would be felt in other rockfish, thornyhead rockfish, demersal harvest specifications on directly sectors. In the GOA, 31 northern shelf rockfish, and Atka mackerel regulated small entities. This IRFA is rockfish catcher vessels and catcher- fisheries described above, the preferred intended to meet the statutory processors, with average gross revenues alternative, which produces fishing requirements of the Regulatory of $823,000, would have gross revenue rates less than maxF , sets TACs Flexibility Act (RFA). A copy of the ABC reductions of a maximum of 2.4 percent, equal to projected annual ABCs. In IRFA is available from NMFS (see while 41 Pacific ocean perch catcher addition, the preferred alternative TACs ADDRESSES). The reason for the action, a vessels and catcher-processors, with for Pacific cod, flathead sole, shallow- statement of the objective of the action, average gross revenues of $735,000, water flatfish, arrowtooth founder, and and the legal basis are discussed in the would have gross revenue reductions of other rockfish, when combined with the preamble and are not repeated here. a maximum of 2 percent. State of Alaska guideline harvest levels The 2005 and 2006 harvest Please refer to the IRFA for a fuller for these fisheries, also equals the ABC. specifications establish harvest limits explanation of impacts on small entities. The increases in TACs related to for the groundfish species and species A copy of the IRFA is available from producing fishing rates of maxF groups in the GOA. This action is ABC NMFS (see ADDRESSES). would not be consistent with necessary to allow fishing in 2005 and This regulation does not impose new biologically prudent fishery 2006. About 807 small catcher vessels recordkeeping or reporting requirements management because they do not fall and 23 small catcher/processors may be on the regulated small entities. This within scientifically determined ABC. directly regulated by these analysis did not reveal any Federal rules This action is authorized under specifications. that duplicate, overlap, or conflict with § 679.20 and is exempt from review The IRFA examined the impacts of the proposed action. under Executive Order 12866. the preferred alternative on small This analysis examined four entities within fisheries defined by the alternatives to the preferred alternative. Authority: 16 U.S.C. 773 et seq., 1801 et harvest of species groups whose TACs These included alternatives that set seq., and 3631 et seq.; 16 U.S.C. 1540(f); Pub. might be affected by the specifications. L. 105 277, Title II of Division C; Pub L. 106 TACs to produce fishing rates equal to 31, Sec. 3027; and Pub L. 106 554, Sec. 209. 1 The IRFA identified adverse impacts on maxFABC, ⁄2 maxFABC, the recent 5 year small fishing operations harvesting average F, and zero. Only one of these Dated: December 1, 2004. sablefish, Pacific cod, northern rockfish, alternatives, setting TACs to produce William T. Hogarth, and Pacific ocean perch in the GOA. fishing rates of maxFABC, would Assistant Administrator for Fisheries, The largest adverse impacts were potentially have a smaller adverse National Marine Fisheries Service. imposed on vessel harvesting sablefish impact on small entities than the [FR Doc. 04–26832 Filed 12–6–04; 8:45 am] and Pacific cod in the GOA. The preferred alternative. This alternative is BILLING CODE 3510–22–S

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Notices Federal Register Vol. 69, No. 234

Tuesday, December 7, 2004

This section of the FEDERAL REGISTER the collection of information unless it monitor agricultural developments contains documents other than rules or displays a currently valid OMB control across the country that may impact on proposed rules that are applicable to the number. the nation’s food supply and to ensure public. Notices of hearings and investigations, that there are sufficient samples to National Agricultural Statistics Service committee meetings, agency decisions and provide accurate indications for NASS rulings, delegations of authority, filing of Title: Cold Storage. petitions and applications and agency published estimates. OMB Control Number: 0535–0001. Need and Use of the Information: statements of organization and functions are Summary of Collection: The primary examples of documents appearing in this NASS will collect information through section. objective of the National Agricultural the use of mail, telephone, and Statistics Service (NASS) is to prepare personnel interviews surveys. The and issue State and national estimates of Secretary of Agriculture uses estimates DEPARTMENT OF AGRICULTURE crop and livestock production. The of crop production to administer farm monthly Cold Storage Survey provides program legislation and to make Submission for OMB Review; information on national supplies of food decisions relative to the export-import Comment Request commodities in refrigerated storage programs. Collecting this information facilities and is used as part of the less frequently would eliminate the data December 1, 2004. country’s preparedness in case of a needed to keep the Department abreast The Department of Agriculture has national emergency. The data will be of changes at the State and national submitted the following information collected under the authority of 7 U.S.C. collection requirement(s) to OMB for level. 2204. This statute specifies ‘‘The Description of Respondents: Farms; review and clearance under the Secretary of Agriculture shall procure business or other for-profits. Paperwork Reduction Act of 1995, and preserve all information concerning Number of Respondents: 605,951. Public Law 104–13. Comments agriculture which he can obtain * * * Frequency of Responses: Reporting: regarding (a) whether the collection of by the collection of statistics * * * and weekly, monthly, quarterly, annually. information is necessary for the proper shall distribute them among Total Burden Hours: 122,145. performance of the functions of the agriculturists.’’ National Agricultural Statistics Service agency, including whether the Need and Use of the Information: information will have practical utility; USDA agencies such as the World Title: Fruits, Nut, and Specialty (b) the accuracy of the agency’s estimate Agricultural Outlook Board, Economic Crops. of burden including the validity of the Research Service, and Agricultural OMB Control Number: 0535–0039. methodology and assumptions used; (c) Marketing Service use the information Summary of Collection: The primary ways to enhance the quality, utility and from the Cold Storage Report in setting function of the National Agricultural clarity of the information to be and administering government Statistics Service (NASS) is to prepare collected; (d) ways to minimize the commodity programs and in supply and and issue current official State and burden of the collection of information demand analysis. Included in the report national estimates of crop and livestock on those who are to respond, including are 100 food items and stock figures that production. Estimates of fruit, tree nuts, through the use of appropriate are used by food processors, food and specialty crops are an integral part automated, electronic, mechanical, or brokers, and farmers in making of this program. These estimates support other technological collection production, marketing and pricing the NASS strategic plan to cover all techniques or other forms of information decisions. The timing and frequency of agricultural cash receipts. The authority technology should be addressed to: Desk the surveys have evolved to meet the to collect these data is granted under Officer for Agriculture, Office of needs of producers, facilities, U.S. Code Title 7, Section 2204. Information and Regulatory Affairs, agribusinesses, and government Information is collected on a voluntary Office of Management and Budget basis from growers, processors, and _ _ _ agencies. (OMB), Pamela Beverly OIRA Description of Respondents: Business handlers through surveys. [email protected] or fax or other for-profit. Need and Use of the Information: (202) 395–5806 and to Departmental Number of Respondents: 3,920. Data reported on fruit, nut, and Hawaii Clearance Office, USDA, OCIO, Mail Frequency of Responses: Reporting: tropical crops are used by NASS to Stop 7602, Washington, DC 20250– monthly; annually; biennially. estimate acreage, yield, production, 7602. Comments regarding these Total Burden Hours: 6,341. utilization, and crop value in states with information collections are best assured significant commercial production. of having their full effect if received National Agricultural Statistics Service These estimates are essential to farmers, within 30 days of this notification. Title: Field Crops Production. processors, and handlers in making Copies of the submission(s) may be OMB Control Number: 0535–0002. production and marketing decisions. obtained by calling (202) 720–8681. Summary of Collection: One of the Estimates from these inquiries are used An agency may not conduct or National Agricultural Statistics Services’ by market order administrators in their sponsor a collection of information (NASS) primary functions is to prepare determination of expected supplies of unless the collection of information and issue current State and national crop under federal and state market displays a currently valid OMB control estimates of crop and livestock orders as well as competitive fruits and number and the agency informs production. The general authority for nuts. potential persons who are to respond to collecting this information is granted Description of Respondents: Farms; the collection of information that such under U.S. Code Title 7, Section 2204. business or other for-profit. persons are not required to respond to NASS will conduct field crop surveys to Number of Respondents: 70,086.

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Frequency of Responses: Reporting: organizations on a new, one-time sources. An important component of on occasion; annually; quarterly; semi- information collection, Homeowner making decisions regarding risk is to annually; monthly. Risk Reduction Behaviors Concerning understand the behaviors that are Total Burden Hours: 10,117. Wildfire Risks. The information will be effective at reducing the risk and the collected from homeowner groups, such information sources that are considered National Agriculture Statistics Service as homeowners associations, that have reliable for risk reduction information. Title: Childhood Injury and Adult been affected by wildfires. To gain a better insight into Occupational Survey. The information collected will focus homeowners’ perceptions of wildfire OMB Control Number: 0535–0235. on homeowners who live in the risk, behaviors that reduce wildfire risk, Summary of Collection: Primary wildland-urban interface and that were and most effective methods of function of the National Agricultural affected by the Hayman fire in Colorado, communicating the risk of wildfire, it is Statistics Services (NASS) is to prepare the B&B Complex fire in Oregon, and important to collect information directly and issue state and national estimates of the Old and Cedar fires in California. from the homeowners that are at risk. crop and livestock production under the The information provided by this study The results of the collection will authority of 7 U.S.C. 2204. NASS will will allow Forest Service land managers provide important information for conduct a national childhood to better understand which risk public land managers and private agricultural injury survey and an adult reduction behaviors homeowners homeowners that will improve the occupational farm injury survey choose to undertake, as well as ones understanding of the issues and options focusing on minority farm operators. they choose not to undertake, and between both groups. The study will provide estimates of factors that influence these choices. Homeowners, located in the wildland- annual childhood and adult nonfatal This information will assist the Forest urban interface in areas that were injury incidence rates, annual injury Service in their risk communication affected by wildfires, will be asked to frequencies, and descriptive injury efforts with ‘‘at risk’’ communities and return surveys. The homeowners will be information for children under the age individuals. members of organized homeowners associations and their participation is of 20 living, working or visiting farm DATES: Comments must be received in operations. writing on or before February 7, 2005 to voluntary. The survey will be mailed to Need and Use of the Information: be assured of consideration. Comments homeowners by Integrated Resource Data from this survey will provide a received after that date will be Solutions in Boulder, Colorado, source of consistent information that the considered to the extent practicable. operating under a Research Joint National Institute for Occupational Venture with the Forest Service Rocky ADDRESSES: Comments concerning this Safety and Health (NIOSH) can use to Mountain Research Station in Fort notice should be addressed to Dr. Brian target funds appropriated by Congress Collins, Colorado. Kent, Project Leader, Rocky Mountain for the prevention of childhood The type of information collected will Research Station, Forest Service, USDA, agricultural injuries and adult include: (1) Risk perceptions regarding 2150 Centre Avenue, Building A, Fort occupational injuries. No source of data wildfire, (2) risk reduction behaviors Collins, CO 80526. on childhood injuries or adult associated with wildfire, (3) sources of Comments also may be submitted via occupational farm injuries exists that information regarding wildfires and facsimile to (970)295–5959 or by e-mail covers all aspects of the agricultural wildfire risk reduction, and (4) socio- to: [email protected]. economic information. production sector. If this information is The public may inspect comments not collected, NIOSH’s ability to track The data collected will be analyzed by received at Rocky Mountain Research Forest Service researchers at the Rocky and evaluate the impact of its injury Station, Forest Service, USDA, 2150 prevention efforts will decrease. Mountain Research Station and the Centre Avenue, Building A, Fort following cooperators: Drs. Ingrid and Description of Respondents: Farms. Collins, Colorado, during normal Number of Respondents: 50,500. Wade Martin of California State business hours. Visitors are encouraged Frequency of Responses: Reporting: University of Long Beach, Long Beach, to call ahead to (970) 295–5955 to other. California, and Dr. Holly Bender of facilitate entry to the building. Total Burden Hours: 12,111. Integrated Resource Solutions, Boulder, FOR FURTHER INFORMATION CONTACT: Dr. Colorado. The results will be made Sondra Blakey, Brian Kent, Rocky Mountain Research available to Forest Service land Departmental Information Collection Station, at (970) 295–5955. Individuals managers, the respondents and other Clearance Officer. who use telecommunication devices for interested parties. [FR Doc. 04–26782 Filed 12–6–04; 8:45 am] the deaf (TDD) may call the Federal This information will enhance the BILLING CODE 3410–20–P Relay Service (FRS) at 1–800–877–8339 ability of Forest Service land managers twenty-four hours a day, every day of on National Forests to communicate and the year, including holidays. understand the public and their DEPARTMENT OF AGRICULTURE SUPPLEMENTARY INFORMATION: preferences regarding the management Title: Homeowner Risk Reduction of wildfire risk. Without this type of Forest Service Behaviors Concerning Wildfire Risks. information, Forest Service land Information Collection; Request for OMB Number: 0596–New. managers and the public will continue Comment; Homeowner Risk Reduction Expiration Date of Approval: N/A. to interact on the issues of wildfire risk Type of Request: New. Behaviors Concerning Wildfire Risks without a broad-based understanding of Abstract: The threat of wildfire to the factors that lessen wildfire risk, AGENCY: Forest Service, USDA. residents located in areas next to factors that are important to ACTION: Notice. forested public lands has increased homeowners. significantly during the last decade. As Estimate of Annual Burden: 20 SUMMARY: In accordance with the homeowners migrate to areas that are at minutes. Paperwork Reduction Act of 1995, the increasing risk from wildfire they face Type of Respondents: Homeowners Forest Service is seeking comments important decisions regarding how located in the wildland-urban interface from all interested individuals and much risk to accept from various in the western United States.

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Estimated Annual Number of FOR FURTHER INFORMATION CONTACT: impairments may also follow the Respondents: 1500. Andrew J. Heimert, Executive Director & proceedings by first calling the Federal Estimated Annual Number of General Counsel, Antitrust Relay Service at 1–800–977–8339 and Responses per Respondent: 1. Modernization Commission: telephone: providing the Service with the Estimated Total Annual Burden on (202) 233–0701; e-mail: [email protected]. conference call number and access code. Respondents: 500 hours. Mr. Heimert is also the Designated To ensure that the Commission Comment is invited on: (1) Whether Federal Officer (DFO) for the Antitrust secures an appropriate number of lines this collection of information is Modernization Commission. for the public, persons are asked to necessary for the stated purposes and SUPPLEMENTARY INFORMATION: The register by contacting Thomas Pilla of the proper performance of the functions purpose of this meeting is for the the Western Regional Office, (213) 894– of the agency, including whether the Antitrust Modernization Commission to 3437, by 3 p.m. on Thursday, December information will have practical or select issues for further Commission 9, 2004. scientific utility; (2) the accuracy of the study, pursuant to its statutory mandate. The meeting will be conducted agency’s estimate of the burden of the Materials relating to the meeting will be pursuant to the provisions of the rules collection of information, including the made available on the Commission’s and regulations of the Commission. validity of the methodology and Web site (http://www.amc.gov) in Dated at Washington DC, November 23, assumptions used; (3) ways to enhance advance of the meeting. 2004. the quality, utility, and clarity of the The AMC has called this meeting Aonghas St. Hiliare, information to be collected; and (4) pursuant to its authorizing statute and Acting Chief Managing Officer. ways to minimize the burden of the the Federal Advisory Committee Act. [FR Doc. 04–26765 Filed 12–6–04; 8:45 am] collection of information on Antitrust Modernization Commission respondents, including the use of Act of 2002, Pub. L. No. 107–273, BILLING CODE 6335–01–P automated, electronic, mechanical, or § 11058(f), 116 Stat. 1758, 1857; Federal other technological collection Advisory Committee Act, 5 U.S.C. App., CIVIL RIGHTS COMMISSION techniques or other forms of information § 10(a)(2); 41 CFR 102–3.150 (2003). technology. Dated: December 1, 2004. Sunshine Act Notice Use of Comments By direction of Deborah A. Garza, Chair of AGENCY: U.S. Commission on Civil All comments received in response to the Antitrust Modernization Commission. Rights. Approved by Designated Federal Officer. this notice, including names and DATE AND TIME: Friday, December 10, addresses when provided, will be a Andrew J. Heimert, 2004, 9:30 a.m. matter of public record. Comments will Executive Director & General Counsel, PLACE: U.S. Commission on Civil Rights, be summarized and included in the Antitrust Modernization Commission. 624 9th Street, NW., Room 540, submission request toward Office of [FR Doc. 04–26786 Filed 12–6–04; 8:45 am] Washington, DC 20425. Management and Budget approval. BILLING CODE 6820–YM–P STATUS: The previously scheduled Dated: November 29, 2004. Commission meeting for December 10, Robin L. Thompson, CIVIL RIGHTS COMMISSION 2004 is canceled. Associate Deputy Chief, State and Private CONTACT PERSON FOR FURTHER Forestry. Agenda and Notice of Public Meeting INFORMATION: Les Jin, Press and [FR Doc. 04–26836 Filed 12–6–04; 8:45 am] of the State Advisory Committee Communications (202) 376–7700. BILLING CODE 3410–11–P Chairpersons in the Western Region Debra A. Carr, Notice is hereby given, pursuant to General Counsel. ANTITRUST MODERNIZATION the provisions of the rules and [FR Doc. 04–27001 Filed 12–3–04; 3:59 p.m] COMMISSION regulations of the U.S. Commission on BILLING CODE 6335–0–M Civil Rights, that a conference call of the Public Meeting State Advisory Committee Chairpersons in the Western Region (Alaska, Arizona, AGENCY: Antitrust Modernization California, Hawaii, Idaho, Nevada, DEPARTMENT OF COMMERCE Commission. Oregon, Texas and Washington) will ACTION: Notice of public meeting. convene at 1 p.m. (PST) and adjourn at Census Bureau 2 p.m., Friday, December 10, 2004. The SUMMARY: The Antitrust Modernization Survey of Pollution Abatement Costs purpose of the conference call is to Commission will hold a public meeting and Expenditures discuss regional civil rights issues and on January 13, 2005. The purpose of the update information. This conference meeting is for the Antitrust ACTION: Proposed collection; comment call is available to the public through Modernization Commission to request. the following call-in number: 1–800– determine issues for further 473–7795, access code number SUMMARY: The Department of Commission study, pursuant to its 31697230. Any interested member of the Commerce, as part of its continuing statutory mandate. public may call this number and listen effort to reduce paperwork burden, DATES: January 13, 2005, 10 a.m. until to the meeting. Callers can expect to invites the general public and other adjourned. Interested members of the incur charges for calls not initiated Federal agencies to take this public may attend. Registration is not using the provided call-in number or opportunity to comment on the required. over wireless lines and the Commission proposed and/or continuing information ADDRESSES: Federal Trade Commission, will not refund any incurred charges. collections, as required by the Conference Center Rooms A & B, 601 Callers will incur no charge for calls Paperwork Reduction Act of 1995, New Jersey Avenue, NW., Washington, using the call-in number over land-line Public Law 104–13 (44 U.S.C. DC. connections. Persons with hearing 3506(c)(2)(A)).

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DATES: Written comments must be Form Number: MA–200S, MA–200P collections, as required by the submitted on or before February 7, 2005. and MA–200. Paperwork Reduction Act of 1995, ADDRESSES: Direct all written comments Type of Review: Regular. Public Law 104–13 (44 U.S.C. to Diana Hynek, Departmental Affected Public: Manufacturing, 3506(c)(2)(A)). Paperwork Clearance Officer, mining and electric utility DATES: Written comments must be Department of Commerce, Room 6625, establishments. submitted on or before February 7, 2005. Estimated Number of Respondents: 14th and Constitution Avenue, NW., ADDRESSES: Direct all written comments The screener—40,000 facilities; the Washington, DC 20233 (or via the to Diana Hynek, Departmental pilot—2,000 facilities; and the survey— Internet at [email protected]). Paperwork Clearance Officer, 20,000 facilities. FOR FURTHER INFORMATION CONTACT: Department of Commerce, Room 6625, Estimated Time Per Response: The Requests for additional information or 14th and Constitution Avenue, NW., screener—.25 hours; the pilot—5 hours; copies of the information collection Washington, DC 20230 (or via the and the survey—5 hours. instrument(s) and instructions should Internet at [email protected]). Estimated Total Burden: 120,000 be directed to Julius Smith Jr., Census hours. The screener—10,000; the pilot— FOR FURTHER INFORMATION CONTACT: Bureau, Room 2135, Building 4, 10,000; and the survey—100,000. Requests for additional information or Washington, DC 20233–6900, (301) 763– Estimated Total Cost: $ 1,500,000. copies of the information collection 4683 (or via the Internet at Respondents’ Obligation: Mandatory. instrument(s) and instructions should [email protected]). Legal Authority: Title 13 United States be directed to Jerome Greenwell, Chief, SUPPLEMENTARY INFORMATION: Code, Section 182,224 and 225. Regulations, Outreach and Education Branch, U.S. Census Bureau, Room I. Abstract IV. Request for Comments 3125, Federal Building 3, Washington, The Census Bureau, with support Comments are invited on: (a) Whether DC 20233–6700, (301) 763–2255, by fax from the Environmental Protection the proposed collection of information (301) 457–2645. Agency, plans to reinstate the Survey of is necessary for the proper performance SUPPLEMENTARY INFORMATION: Pollution Abatement Costs and of the functions of the agency, including I. Abstract Expenditures (PACE), MA–200 for 2005. whether the information shall have In addition to the survey, the Census practical utility; (b) the accuracy of the The Shipper’s Export Declaration Bureau also plans to conduct a screener agency’s estimate of the burden (SED), Commerce Form 7525–V, and the and a pilot. (including hours and cost) of the electronic equivalent, the Automated The screener will be administered in proposed collection of information; (c) Export System (AES), are instruments an attempt to identify plants, for both ways to enhance the quality, utility, and used for collecting export trade the pilot and the survey, that have clarity of the information to be information. The data collected from pollution abatement activities. Once collected; and (d) ways to minimize the these sources are compiled by the U.S. these plants have been identified, the burden of the information collection on Census Bureau (Census Bureau) and pilot will then be administered to a respondents, including through the use functions as the basis for the official small sample. These selected plants will of automated collection techniques or U.S. export trade statistics. These be asked to complete and comment on other forms of information technology. statistics are used to determine the the proposed 2005 survey form. The Comments submitted in response to this balance of international trade, and are information gained from the screener notice will be summarized and included also designated for use as a principal and pilot will be used in finalizing the in the request for OMB approval of this economic indicator. Title 13, United survey instrument and sample design. information collection; they also will States Code (U.S.C.), chapter 9, section The screener will contain a small become a matter of public record. 301 authorizes the Census Bureau to number of questions (approximately 3– collect, compile and publish export Dated: December 1, 2004. 5), in the form of check boxes, to trade data. Title 15, Code of Federal determine if pollution abatement Madeleine Clayton, Regulations, part 30 contains the activities are conducted and if so, a Management Analyst, Office of the Chief regulatory provisions for preparing and range of those costs. The pilot and the Information Officer. filing the SED or the AES record. These survey will collect data on capital [FR Doc. 04–26779 Filed 12–6–04; 8:45 am] data are used in the development of U.S. expenditures for pollution abatement BILLING CODE 3510–07–P Government policies that affect the activities and operating costs. These economy. These data also enable U.S. data will be collected by categories businesses to develop practical export (treatment, prevention, disposal and DEPARTMENT OF COMMERCE marketing strategies as well as provide a means for the assessment of the recycling) and media (air, water and Census Bureau solid waste). It will also collect some impact of exports on the domestic data on depreciation and cost offsets. Shipper’s Export Declaration (SED)/ economy. The data collected from the The pilot will also include some Automated Export System (AES) SED and the AES record are also used qualitative questions to validate the Program for export control purposes under Title estimates collected. 50, U.S.C., Export Administration Act, ACTION: Proposed collection; comment to detect and prevent the export of II. Method of Collection request. certain items by unauthorized parties or The Census Bureau will use mail out/ to unauthorized destinations or end mail back survey forms for the screener, SUMMARY: The Department of users. pilot and survey. Companies will be Commerce, as part of its continuing On November 29, 1999, the President asked to respond to each within 30 days effort to reduce a paperwork and signed into law the Consolidated of the initial mailing. respondent burden, invites the general Appropriations Act of 1999, which public and other Federal agencies to authorized the Secretary of Commerce III. Data take this opportunity to comment on to require mandatory electronic filing of OMB Number: 0607–0176. proposed and/or continuing information items on the Commerce Control List

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(CCL) and the U.S. Munitions List requirements to file export information Commerce Form Number: 7525–V, (USML). The requirement to implement through the AES for all USML and CCL Automated Export System (AES) this process went into effect October 18, shipments has resulted in the submissions. 2003. On July 29, 2003, the President elimination of more than 360,000 paper Type of Review: Regular submission. signed Executive Order 13312, which SEDs annually. Exporters can access the Affected Public: Exporters, executed prohibitions to Public Law AES via the Census Bureau’s free Forwarding agents, Export Carriers. 108–19, the Clean Diamond Trade Act Internet-based system, AESDirect, or Estimated Number of Respondents: thereby authorizing the mandatory they can integrate the AES into their 223,213. electronic filing of rough diamonds. company’s computer network and file Estimated Time Per Response: 11.0 Implementation for this process went directly with the U.S. Customs and minutes for 7525–V, 3.0 minutes for into effect October 20, 2003. On Border Protection (CBP). Exporters may AES Submissions. September 30, 2002, the President also download the SED, Commerce Estimated Total Annual Burden signed into law the Foreign Relations Form 7525–V, from the Internet and Hours: 814,140 (SEDs 198,000) (AES Authorization Act, Public Law 107–228. print it on the required ‘‘buff’’ colored 616,140). This law authorizes the Secretary of paper. Estimated Total Annual Cost: Commerce, with the concurrence of the For exports to Canada, a $13,156,502. Secretary of State and the Secretary of Memorandum of Understanding (MOU) Respondent’s Obligation: Mandatory. Homeland Security, to publish signed by the CBP and statistical Legal Authority: Title 13, United regulations in the Federal Register agencies in the United States and States Code, Chapter 9; Public Law 107– detailing that upon the effective date of Canada enables the United States to 228 Foreign Relations Authorization these regulations, all persons who are substitute Canadian import statistics for Act. required to file export information U.S. export statistics. Similarly, in IV. Request for Comments under Title 13, U.S.C., chapter 9, file accordance with the MOU, Canada such information through the AES and substitutes U.S. import statistics for Comments are invited on: (a) Whether there will no longer be provisions made Canadian exports to the United States. the proposed collection of information for manual filing thereafter. On October This exchange of data eliminates the is necessary for the proper performance 22, 2003, The Census Bureau published requirement for U.S. exporters to file of the functions of the agency, including an Advanced Notice of Proposed any information with the U.S. whether the information shall have Rulemaking in the Federal Register (68 Government for exports of nonlicensed practical utility; (b) the accuracy of the FR 60301) announcing the Census shipments to Canada, thus resulting in agency’s estimate of the burden Bureau’s intent to propose the rule the elimination of over eight million (including hours and cost) of the mandating electronic filing through the paper SEDs annually. Export shipments proposed collection of information; (c) AES of all information on export to Canada that require a license must be ways to enhance the quality, utility, and shipments that require the filing of a filed through the AES. Also, export clarity of the information to be SED and allowed the public to comment shipments from the United States collected; and (d) ways to minimize the on this subject. through Canada destined to a country burden of the collection of information other than Canada require a SED or AES II. Method of Collection on respondents, including through the record. use of automated collection techniques A paper SED or electronic AES record U.S. principal parties in interest or other forms of information is required, with certain exceptions, for (USPPI) or authorized agents file technology. all export shipments valued more than individual paper SEDs with exporting Comments submitted in response to $2,500 from the United States, including carriers at the time export shipments this notice will be summarized and/or Foreign Trade Zones located therein, leave the United States. For the AES, included in the request for Office of Puerto Rico, and the U.S. Virgin Islands USPPIs or authorized agents file export Management and Budget approval of to foreign countries; for exports between data electronically with the Census this information collection; they also the United States and Puerto Rico; and Bureau or the CBP. Carriers submit will become a matter of public record. for exports to the U.S. Virgin Islands paper SED documents to CBP officials Dated: December 1, 2004. from the United States or Puerto Rico. when the carrier departs from the The AES record information is also United States and the CBP then Madeleine Clayton, required for the export of rough transmits the export information to the Management Analyst, Office of the Chief diamonds and all exports requiring a Census Bureau for statistical processing. Information Officer. license from the Bureau of Industry and The AES enables the Government to [FR Doc. 04–26780 Filed 12–6–04; 8:45 am] Security, a license or license exception significantly improve the quality, BILLING CODE 3510–07–P from the Department of State, or other timeliness, and coverage of export government agency, regardless of value, statistics. Since July 1995, the Census unless exempted from the requirement Bureau and the CBP have utilized the DEPARTMENT OF COMMERCE for filing AES information by the AES to improve the reporting of export Census Bureau licensing government agency. The SED/ trade information, customer service, AES program is unique among Census compliance with and enforcement of The American Community Survey Bureau statistical collections since it is export laws, and provide paperless not sent to respondents to solicit reports of export information. The AES ACTION: Proposed collection; comment responses as is the case with surveys. also enables the U.S. Government to request. Filing export information via the SED or increase its ability to prevent the export AES is a mandatory process under Title of certain items by unauthorized parties, SUMMARY: The Department of 13, Chapter 9, U.S.C. The Census to unauthorized destinations and end Commerce, as part of its continuing Bureau has seen a progressive growth in users through electronic filing. effort to reduce paper work and the number of electronic filers, with a respondent burden, invites the general comparable decrease in the number of III. Data public and other federal agencies to take the paper SED filers. For example, the OMB Number: 0607–0152. this opportunity to comment on

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proposed or continuing information to provide comparable data at the for the American Community Survey. collections, as required by the census tract level by summer of 2010. For households that do not return a Paperwork Reduction Act of 1995, The American Community Survey questionnaire, Census Bureau staff will Public Law 104–13 (44 U.S.C. demonstration period began in 1996 in attempt to conduct interviews via CATI. 3506(c)(2)(A)). four sites. In 1999, the number of sites We will also conduct CAPI interviews was increased to 31 comparison sites. for a subsample of nonrespondents. DATES: Written comments must be The comparison with Census 2000 was For most types of GQs, Census Bureau submitted on or before February 7, 2005. designed to collect several kinds of field representatives (FRs) will conduct ADDRESSES: Direct all written comments information necessary to understand the the interviews in person or, if necessary, to Diana Hynek, Departmental differences between data from the 1999– leave questionnaires and ask Paperwork Clearance Officer, 2001 American Community Survey and respondents to complete. Department of Commerce, Room 6625, data from the 2000 long form. The Information from GQ contacts will be 14th and Constitution Avenue, NW., purpose of the comparison sites was to collected via FR interview. Washington, DC 20230 (or via the give a good tract-by-tract comparison The Census Bureau staff will provide Internet at [email protected]). between the 1999–2001 American Telephone Questionnaire Assistance FOR FURTHER INFORMATION CONTACT: Community Survey cumulated estimates (TQA) and if the respondent indicates a Requests for additional information or and the Census 2000 long-form desire to answer by telephone, the TQA copies of the information collection estimates and to use these comparisons interviewer conducts the interview. to identify both the causes of differences instrument(s) and instructions should III. Data be directed to Lawrence McGinn, U.S. and diagnostic variables that tend to Census Bureau, American Community predict a certain kind of difference. OMB Number: 0607–0810. Survey Office, Washington, DC 20233. In 2000–2004, the Census Bureau Form Number(s): ACS–1, ACS–1 (SP), Phone: (301) 763–8050. conducted supplementary surveys using ACS–1PR, ACS–1PR (SP), ACS–1(GQ), the American Community Survey ACS–1(GQ) PR, ACS–3(GQ), ACS– SUPPLEMENTARY INFORMATION: methodology. Each of these surveys had 4(GQ), ACS–4(GQ) (SP), ACS–4(GQ) PR, I. Abstract a sample of approximately 800,000 ACS–4(GQ) PR (SP), ACS–290, ACS– residential addresses per year. These 290(SP), ACS–290PR, and ACS–290PR Given the rapid demographic changes surveys were conducted to study the (SP). experienced in recent years and the operational feasibility of collecting long- Type of Review: Regular. strong expectation that such changes form type data using a different Affected Public: Individuals and will continue and accelerate, the once- methodology from the decennial census households. a-decade data collection approach of a and demonstrate the reliability and Estimated Number of Respondents: decennial census is no longer stability of state and large area estimates During the period of July 2005 through acceptable. To meet the needs and over time. June 2008, we plan to contact the expectations of the country, the Census For 2005–2008, the Census Bureau following number of respondents: Bureau developed the American plans to conduct the American 9,108,000 residential addresses; 537,500 Community Survey. This survey will Community Survey in every part of the persons in GQs; and 51,000 contacts in collect long-form data every month and United States and also in Puerto Rico. GQs. In addition, 106,000 residential provide tabulations of these data on a In 2005, the Census Bureau will begin addresses and 14,800 persons in GQs for yearly basis. In the past, the long-form full implementation of the American reinterview will be contacted. data were collected only at the time of Community Survey by increasing the Estimated Time Per Response: each decennial census. The American sample to a total of approximately Estimates are 38 minutes per residential Community Survey will allow the 250,000 residential addresses per month address, 15 minutes per person in GQs, Census Bureau to remove the long form in the 50 states and the District of 25 minutes per contact in GQs, and 10 from the 2010 Census, thus reducing Columbia and approximately 3,000 minutes per residential address and per operational risks, improving accuracy, residential addresses per month in person in GQs in the reinterview and providing more relevant data. After Puerto Rico. Data will be collected by sample. years of development and testing, the mail and Census Bureau staff will Estimated Total Annual Burden American Community Survey is ready follow up with households that do not Hours: The estimate is an annual for full implementation in FY 2005. respond using computer-assisted average of 1,981,386 burden hours. The American Community Survey telephone interviewing (CATI) and Estimated Total Annual Cost: Except will provide more timely information computer-assisted personal interviewing for their time, there is no cost to for critical economic planning by (CAPI). respondents. governments and the private sector. In In addition to selecting a sample of Respondent Obligation: Mandatory. the current information-based economy, residential addresses, the Census Authority: Title 13, United States federal, state, tribal, and local decision Bureau plans to select a sample of group Code, Sections 141 and 193. makers, as well as private business and quarters (GQs) and conduct the IV. Request for Comments nongovernmental organizations, need American Community Survey with a current, reliable, and comparable sample of persons within the GQs Comments are invited on: (a) Whether socioeconomic data to chart the future. starting in January 2006. The Census the proposed collection of information The American Community Survey will Bureau will also conduct a reinterview is necessary for the proper performance provide up-to-date profiles of American operation with a small sample of of the functions of the agency, including communities every year beginning in households and persons in GQs to whether the information shall have 2006, providing policymakers, planners, monitor the quality of data collected practical utility; (b) the accuracy of the and service providers in the public and during the CAPI. agency’s estimate of the burden private sectors with information every (including hours and cost) of the year—not just every ten years. II. Method of Collection proposed collection of information; (c) The American Community Survey The Census Bureau will mail ways to enhance the quality, utility, and must begin full implementation in 2005 questionnaires to households selected clarity of the information to be

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collected; and (d) ways to minimize the years, we intend to conduct the 2005 Estimated Number of Respondents: burden of the collection of information and 2006 Annual Survey of Government 9,753 (annual survey), 45,961 (Census). on respondents, including through the Finance, and the 2007 Census of Estimated Time Per Response: 2.903 use of automated collections techniques Government Finance. (Annual); 2.37 (Census). or other forms of information The Annual Survey of State and Local Estimated Total Annual Burden technology. Government Finance collects data on Hours: 28,310.5 (Annual); 108,840.5 Comments submitted in response to state government finances and estimates (Census). this notice will be summarized and/or of local government revenue, Estimated Total Annual Cost: Cost to included in the request for the OMB expenditure, debt, and assets, nationally respondents is estimated to be $535,918 approval of this information collection; and within state areas. Data are (Annual); 2,060,351 (Census). they also will become a matter of public collected for all agencies, departments, (Note—Based upon the average hourly pay record. and institutions of the fifty state for full-time employment for the financial Dated: December 1, 2004. governments and for a sample of all administration function within the 2002 local governments (counties, Madeleine Clayton, census of local government employment.) municipalities, townships, and special Management Analyst, Office of the Chief districts). Data for school districts are Respondent’s Obligation: Voluntary. Information Officer. collected under a separate survey. In the Legal Authority: Title 13, sections 161 [FR Doc. 04–26781 Filed 12–6–04; 8:45 am] census year, equivalent data are and 182. BILLING CODE 3510–07–P collected from all local governments. IV. Request for Comments This survey is a mail canvass survey with an initial mailing and one follow- Comments are invited on: (a) Whether DEPARTMENT OF COMMERCE up mailing. Telephone follow-up is the proposed collection of information is necessary for the proper performance Census Bureau used to contact non-respondents and, as necessary, to correct apparent errors and of the functions of the agency, including Government Finance Forms incorrect responses. These forms and whether the information shall have procedures are similar to those used in practical utility; (b) the accuracy of the ACTION: Proposed collection; comment previous finance surveys. We are agency’s estimate of the burden request. currently in the process of redesigning (including hours and cost) of the the finance forms, such that items proposed collection of information; (c) SUMMARY: The Department of included in the previous F–21, F–22, ways to enhance the quality, utility, and Commerce, as part of its continuing and F–28 will now all be included clarity of the information to be effort to reduce paperwork and within a new overall F–28 form. collected; and (d) ways to minimize the respondent burden, invites the general Results of this survey are used by the burden of the collection of information public and other Federal agencies to Bureau of Economic Analysis to develop on respondents, including through the take this opportunity to comment on the public sector components of the use of automated collection techniques proposed and/or continuing information National Income and Product Accounts. or other forms of information collections, as required by the Other Federal agencies that make technology. Paperwork Reduction Act of 1995, frequent use of these data include the Comments submitted in response to Public Law 104–13 (44 U.S.C. U.S. Federal Reserve Board, the this notice will be summarized and/or 3506(c)(2)(A)). Congressional Research Service, the included in the request for OMB DATES: Written comments must be General Accounting Office, and the approval of this information collection; submitted on or before February 7, 2005. Department of Justice. Other users they also will become a matter of public record. ADDRESSES: Direct all written comments include state and local government to Diana Hynek, Departmental executives and legislators, policy Dated: December 1, 2004. Paperwork Clearance Officer, makers, economists, researchers, and Madeleine Clayton, Department of Commerce, Room 6625, the general public. Management Analyst, Office of the Chief 14th and Constitution Avenue, NW., II. Method of Collection Information Officer. Washington, DC 20230 (or via the [FR Doc. 04–26783 Filed 12–6–04; 8:45 am] Internet at [email protected]). Canvass methodology primarily consists of a mail out/mail back BILLING CODE 3510–07–P FOR FURTHER INFORMATION CONTACT: questionnaire. Responses will be Requests for additional information or screened manually, then put into an DEPARTMENT OF COMMERCE copies of the information collection electronic format. Other methods used instrument(s) and instructions should to collect data and maximize response International Trade Administration be directed to Stephen Poyta, Chief, include collecting local government Public Finance Analysis Branch–A, data from central state sources, Outside Assessment of DOC Governments Division, U.S. Bureau of compiling from submitted financial Compliance Program the Census, Washington, DC 20233– audits, comprehensive financial reports, 6800, (301) 763–1580. and public Internet outputs. Also, the ACTION: Proposed collection; comment SUPPLEMENTARY INFORMATION: finance forms can be completed on the request. Internet. I. Abstract SUMMARY: The Department of The Census Bureau plans to request III. Data Commerce, as part of its continuing clearance for the forms necessary to OMB Number: 0607–0585. effort to reduce paperwork and conduct the public finance program Form Number: F–5, F–5A, F–11, F– respondent burdens, invites the general which consists of an annual collection 12, F–13, F–25, F–28, F–29, F–32, F–42. public and other Federal agencies to of information and a quinquennial Type of Review: Regular. take this opportunity to comment on the collection in the census years ending in Affected Public: State and local continuing information collections, as ‘‘2’’ and ‘‘7’’. During the upcoming three governments. required by the Paperwork Reduction

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Act of 1995, Pub. L.104–13 (44 U.S.C. An enhanced customer satisfaction IV. Request for Comments 3506 (c)(2)(A)). program or other service improvements Comments are invited on: (a) Whether DATES: Written comments must be might result from this data collection the proposed collection of information submitted on or before February 7, 2005. initiative. is necessary for the proper performance ADDRESSES: Direct all written comments II. Method of Collection of the functions of the agency, including to Diana Hynek, Departmental whether the information shall have Paperwork, Clearance Officer, The Department of Commerce’s (DOC) practical utility; (b) the accuracy of the Department of Commerce, Room 6625, International Trade Administration agency’s estimate of the burden 14th & Constitution Avenue, NW., (ITA) is making great strides in (including hours and costs) of the Washington, DC 20230 or via e-mail at monitoring ITA’s customer satisfaction proposed collection information; (c) [email protected]. and advancing a strategic approach to ways to enhance the quality, utility, and FOR FURTHER INFORMATION CONTACT: delivering value to its customers. The clarity of the information to be Request for additional information or Trade Agreements Compliance unit has collected; (d) ways to minimize the copies of the information collection contracted with Charney Research to burden of the collection of information instrument and instructions should be issue a questionnaire and host focus on respondents, including through the directed to: Pamela Woods, Trade group interviews to gather strategic use of automated collection techniques Compliance Center, Room 3043, U.S. feedback from core and target TCC or forms of information technology. Department of Commerce, 14th and customers. These surveys will assess Comments submitted in response to this Constitution Ave., NW., Washington, reactions to MAC’s publicly available notice will be summarized and/or DC 20230; Phone Number: (202) 482– tools, informational outreach efforts, included in the request for OMB 1191. customer service regarding compliance approval of this information collection; casework, and new initiatives for SUPPLEMENTARY INFORMATION: they also will become a matter of public exporters. record. I. Abstract Contractor will conduct two online Dated: December 1, 2004. In 2003, the Department of focus groups with a total of about two Madeleine Clayton, dozen exporting businesses, first, to Commerce’s (DOC’s) International Trade Management Analyst, Office of the Chief Administration (ITA) conducted a obtain ‘‘open ended’’ qualitative Information Officer. information on foreign trade barrier bureau-wide Customer Satisfaction [FR Doc. E4–3500 Filed 12–6–04; 8:45 am] Survey covering all ITA program units, assistance needs, outreach demands or BILLING CODE 3510–01–P related to the citizen-centered objectives opportunities, and market access/ of the President’s Management Agenda. compliance values from exporting The results were used to set a baseline customer base with program/service DEPARTMENT OF COMMERCE for performance metric reporting and contact experiences. Subsequently, mass tracking and to better understand the questionnaires yielding at least 250 International Trade Administration customer base it serves. ITA’s Market survey responses will seek to collect Access and Compliance (MAC) program ‘‘closed end’’ quantitative data about A–570–846 survey report identified gaps between a customer base identify among the exporting public, best means to deliver Brake Rotors from the People’s high level of customer awareness yet Republic of China: Initiation of Twelfth low customer use of fair trade and promotional campaigns to the private sector, ways to raise user awareness and New Shipper Antidumping Duty market access services. Findings also Review indicated that a substantial customer interactive engagement, reactions to base is unaware of the specific services tools available, and perceptions of TCC AGENCY: Import Administration, that the DOC Compliance Program program and services offered. Narrative International Trade Administration, offers. experiences derived from focus group Department of Commerce. In response to the survey findings, participants will be incorporated into SUMMARY: The Department of Commerce MAC is undertaking a customer service survey questions to validate results and received two requests on October 28, analysis to find out in more specific benchmark decision points for 2004, to conduct a new shipper review terms and greater detail, what MAC’s government officials. of the antidumping duty order on brake Trade Compliance Center’s (TCC’s) III. Data rotors from the People’s Republic of customers expectations are. This will China (‘‘PRC’’). In accordance with 19 enable the TCC to answer: ‘‘What Do OMB Number: 0625–XXXX. CFR 351.214(d), we are initiating a new Customers Want from the DOC’s Form Number: ITA–XXX. shipper review for the companies that Compliance Program?’’ Information Type of Review: Regular Submission. requested such a review: Dixion Brake about the TCC can be found on its System (Longkou) Ltd. (‘‘Dixion’’) and website at http://www.export.gov/tcc. Affected Public: U.S. Exporters and Laizhou Wally Automobile Co., Ltd. The purpose of this outside their Business Representatives, (‘‘Wally’’), each of which is a producer assessment is to obtain customer and categorized as either active customers, and exporter of brake rotors from the potential customer views regarding the prospective customers, or untapped PRC. DOC Compliance Program to determine: customers. EFFECTIVE DATE: December 6, 2004. • If the TCC offers the right set of Estimated Number of Respondents: services to assist U.S. exporters to 274. FOR FURTHER INFORMATION CONTACT: Cindy Robinson or Tom Killiam, Import overcome foreign trade barriers. Estimated Time Per Response: 2 hours • Administration, International Trade If MAC is aware of exporter needs. for focus group participants and 15 • If the right MAC programs are in Administration, U.S. Department of minutes for survey respondents. place to meet identified needs. Commerce, 14th Street and Constitution • If MAC services are properly Estimated Total Annual Burden Avenue, NW., Washington, DC 20230; promoted to maximize efficiency and Hours: 110.5. telephone (202) 482–3797 or (202) 482– effectiveness. Estimated Total Annual Costs: $7,300. 5222, respectively.

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SUPPLEMENTARY INFORMATION: States and the volume and date of entry days for response. If the response from of that shipment. each respondent provides sufficient Background In accordance with section indication that each company is not The Department received timely 751(a)(2)(B) of the Tariff Act of 1930 subject to either de jure or de facto requests on October 28, 2004, from (‘‘the Act’’), as amended, and 19 CFR government control with respect to its Dixion and Wally in accordance with 19 351.214(b), and based on our analysis of exports of brake rotors, the review with CFR 351.214(c), for a new shipper the information and documentation respect to that company will proceed. If, review of the antidumping duty order provided with the new shipper review on the other hand, the respondent does on brake rotors from the PRC, which has requests, as well as our analysis of not demonstrate its eligibility for a an April anniversary month. proprietary import data from U.S. separate rate, then it will be deemed to Dixion and Wally each identified Customs and Border Protection (‘‘CBP’’), be affiliated with other companies that itself as the producer of the brake rotors we find that Dixion and Wally have exported during the POI and that it did it exports. As required by 19 CFR each met the requirements for the not establish entitlement to a separate 351.214(b)(2)(i) and (iii)(A), each of the Department to initiate a new shipper rate, and the review of that respondent exporters identified above has certified review (for more details, see New will be rescinded. that it did not export brake rotors to the Shipper Initiation Checklists for Dixion Initiation of Review United States during the period of and Wally). Therefore, we are initiating investigation (‘‘POI’’), and that it has a new shipper review for Dixion and In accordance with section never been affiliated with any exporter Wally. 751(a)(2)(B)(ii) of the Act and 19 CFR or producer which did export brake In cases involving non–market 351.214(d)(1), we are initiating a new rotors during the period of investigation economies, it is the Department’s shipper review of the antidumping duty (‘‘POI’’) (see each company’s October normal practice to require that a order on brake rotors from the PRC. We 28, 2004, submission). Each company company seeking to establish eligibility intend to issue the preliminary results has further certified that its export for an antidumping duty rate separate of this review not later than 180 days activities are not controlled by the from the country–wide rate provide de after the date on which the review is central government of the PRC, jure and de facto evidence of an absence initiated. satisfying the requirements of 19 CFR of government control over the In accordance with 19 CFR 351.214(b)(2)(iii)(B). Pursuant to 19 CFR company’s export activities (see Natural 351.214(g)(1)(i)(B), the period of review 351.214(b)(2)(iv)(A), Dixion and Wally Bristle Paintbrushes and Brush Heads (‘‘POR’’) for a new shipper review, each provided the date of the first sale from the People’s Republic of China, 68 initiated in the month following the to an unaffiliated customer in the FR 57875 (October 7, 2003)). semi–annual anniversary month, will be United States. Dixion and Wally each Accordingly, we will issue a the six–month period immediately submitted documentation establishing questionnaire to Dixion and Wally proceeding the semi–annual anniversary the date on which it first shipped the (including a complete separate rates month. Therefore, the POR for this new subject merchandise to the United section), allowing approximately 37 shipper review is:

Antidumping duty new shipper review Period to be reviewed

PRC: Brake Rotors, A–570–846:. Dixion Brake System (Longkou) Ltd...... 04/01/04–09/30/04 Laizhou Wally Automobile Co., Ltd...... 04/01/04–09/30/04

We will instruct CBP to allow, at the the Act (19 U.S.C. 1675(a)) and 19 CFR ACTION: Notice of initiation of option of the importer, the posting, until 351.214(d). antidumping duty changed the completion of the review, of a bond Dated: November 24, 2004. circumstances review. or security in lieu of a cash deposit for each entry of the subject merchandise Barbara E. Tillman, SUMMARY: In accordance with 19 CFR from Dixion and Wally. This action is in Acting Deputy Assistant Secretary for Import 351.216(b), Metal One Corporation accordance with section 751(a)(2)(B)(iii) Administration. (Metal One), filed a request for a of the Act, as amended, and 19 CFR [FR Doc. E4–3478 Filed 12–6–04; 8:45 am] changed circumstances review of the 351.214(e). Because Dixion and Wally BILLING CODE: 3510–DS–P antidumping duty order on certain has each certified that it both produces corrosion-resistant carbon steel flat and exports the subject merchandise, products from Japan. In response to this the sale of which was the basis for its DEPARTMENT OF COMMERCE request, the Department of Commerce is new shipper review request, we will initiating a changed circumstances apply the bonding privilege only to International Trade Administration review on certain corrosion-resistant entries of subject merchandise for which carbon steel flat products from Japan they are both the producer and exporter. [A–588–824] with respect to diffusion annealed Interested parties that need access to nickel-plate. proprietary information in this new Certain Corrosion-Resistant Carbon EFFECTIVE DATE: December 7, 2004. Steel Flat Products From Japan: shipper review should submit FOR FURTHER INFORMATION CONTACT: Initiation of Antidumping Duty applications for disclosure under George McMahon, Christopher Hargett, Changed Circumstances Review administrative protective order in or James Terpstra, AD\CVD Operations, accordance with 19 CFR 351.305 and Office 3, Import Administration, AGENCY: Import Administration, 351.306. International Trade Administration, International Trade Administration, This initiation and notice are in U.S. Department of Commerce, 14th Department of Commerce. accordance with section 751(a)(2)(B) of Street and Constitution Avenue, NW.,

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Washington, DC 20230; telephone (202) coils (whether or not in successively widths ranging from 10 millimeters 482–1167, (202) 482–4161, or (202) 482– superimposed layers) and of a width of (0.394 inches) through 100 millimeters 3965, respectively. 0.5 inch or greater, or in straight lengths (3.94 inches); thicknesses, including SUPPLEMENTARY INFORMATION: which, if of a thickness less than 4.75 coatings, ranging from 0.11 millimeters millimeters, are of a width of 0.5 inch (0.004 inches) through 0.60 millimeters Background or greater and which measures at least (0.024 inches); and a coating that is from On August 19, 1993, the Department 10 times the thickness or if of a 0.003 millimeters (0.00012 inches) of Commerce (the Department) thickness of 4.75 millimeters or more through 0.005 millimeters (0.000196 published an antidumping duty order are of a width which exceeds 150 inches) in thickness and that is on certain corrosion-resistant carbon millimeters and measures at least twice comprised of three evenly applied steel flat products from Japan. See the thickness, as currently classifiable in layers, the first layer consisting of 99% Antidumping Duty Orders: Certain the HTS under item numbers: zinc, 0.5% cobalt, and 0.5% Corrosion-Resistant Carbon Steel Flat 7210.30.0030, 7210.30.0060, molybdenum, followed by a layer Products From Japan, 58 FR 44163 7210.41.0000, 7210.49.0030, consisting of chromate, and finally a (August 19, 1993). On October 13, 2004, 7210.49.0090, 7210.61.0000, layer consisting of silicate. See Certain Metal One requested that the 7210.69.0000, 7210.70.6030, Corrosion-Resistant Carbon Steel Flat Department revoke the antidumping 7210.70.6060, 7210.70.6090, Products From Japan: Final Results of duty order on diffusion annealed nickel- 7210.90.1000, 7210.90.6000, Changed Circumstances Antidumping plate featuring totally unalloyed nickel 7210.90.9000, 7212.20.0000, Duty Administrative Review, and plated coating measuring less than or 7212.30.1030, 7212.30.1090, Revocation in Part of Antidumping Duty equal to 8 microns, with both sides of 7212.30.3000, 7212.30.5000, Order, 62 FR 66848 (December 22, the sheet having a coating of at least 0.2 7212.40.1000, 7212.40.5000, 1997). microns through the initiation of a 7212.50.0000, 7212.60.0000, Also excluded from the scope of this order are imports of subject changed circumstances review. 7215.90.1000, 7215.90.3000, According to Metal One, revocation merchandise meeting all of the 7215.90.5000, 7217.20.1500, with respect to diffusion annealed following criteria: (1) Widths ranging 7217.30.1530, 7217.30.1560, nickel-plate is warranted because there from 10 millimeters (0.394 inches) 7217.90.1000, 7217.90.5030, is minimal alteration to the through 100 millimeters (3.94 inches); 7217.90.5060, and 7217.90.5090. specifications of the products with (2) thicknesses, including coatings, respect to the decision by the Included in the order are flat-rolled ranging from 0.11 millimeters (0.004 Department in July 2002 with the products of nonrectangular cross-section inches) through 0.60 millimeters (0.024 following specifications: (1) Widths where such cross-section is achieved inches); and (3) a coating that is from ranging from 10 millimeters (0.394 subsequent to the rolling process (i.e., 0.003 millimeters (0.00012 inches) inches) through 100 millimeters (3.94 products which have been ‘‘worked through 0.005 millimeters (0.000196 inches); (2) thicknesses, including after rolling’’)— for example, products inches) in thickness and that is coatings, ranging from 0.11 millimeters which have been beveled or rounded at comprised of either two evenly applied (0.004 inches) through 0.60 millimeters the edges. layers, the first layer consisting of 99% (0.024 inches); and (3) a coating that is Excluded from the scope of the order zinc, 0.5% cobalt, and 0.5% from 0.003 millimeters (0.00012 inches) are flat-rolled steel products either molybdenum, followed by a layer through 0.005 millimeters (0.000196 plated or coated with tin, lead, consisting of chromate, or three evenly inches) in thickness and that is chromium, chromium oxides, both tin applied layers, the first layer consisting comprised of either two evenly applied and lead (‘‘terne plate’’), or both of 99% zinc, 0.5% cobalt, and 0.5% layers, the first layer consisting of 99% chromium and chromium oxides (‘‘tin- molybdenum followed by a layer zinc, 0.5% cobalt, and 0.5% free steel’’), whether or not painted, consisting of chromate, and finally a molybdenum, followed by a layer varnished or coated with plastics or layer consisting of silicate. See Certain consisting of phosphate, or three evenly other nonmetallic substances in Corrosion-Resistant Carbon Steel Flat applied layers, the first layer consisting addition to the metallic coating. Also Products From Japan: Final Results of of 99% zinc, 0.5% cobalt, and 0.5% excluded from the scope of the order are Changed Circumstances Antidumping molybdenum followed by a layer clad products in straight lengths of Duty Administrative Review, and consisting of phosphate, and finally a 0.1875 inch or more in composite Revocation in Part of Antidumping Duty layer consisting of silicate. thickness and of a width which exceeds Order, 64 FR 14861 (March 29, 1999). In response to Metal One’s request, 150 millimeters and measures at least Also excluded from the scope of this the Department is initiating a changed twice the thickness. Also excluded from order are: (1) Carbon steel flat products circumstances review with respect to the scope of the order are certain clad measuring 1.84 mm in thickness and the antidumping duty order on certain stainless flat-rolled products, which are 43.6 mm or 16.1 mm in width consisting corrosion-resistant carbon steel flat three-layered corrosion-resistant carbon of carbon steel coil (SAE 1008) clad products from Japan. steel flat-rolled products less than 4.75 with an aluminum alloy that is balance millimeters in composite thickness that aluminum, 20% tin, 1% copper, 0.3% Scope of the Order consist of a carbon steel flat-rolled silicon, 0.15% nickel, less than 1% The products subject to this order product clad on both sides with other materials and meeting the include flat-rolled carbon steel stainless steel in a 20%–60%–20% requirements of SAE standard 783 for products, of rectangular shape, either ratio. See Antidumping Duty Orders: Bearing and Bushing Alloys; and (2) clad, plated, or coated with corrosion- Certain Corrosion-Resistant Carbon carbon steel flat products measuring resistant metals such as zinc, aluminum, Steel Flat Products From Japan, 58 FR 0.97 mm in thickness and 20 mm in or zinc-, aluminum-, nickel- or iron- 44163 (August 19, 1993). width consisting of carbon steel coil based alloys, whether or not corrugated Also excluded from the scope of this (SAE 1008) with a two-layer lining, the or painted, varnished or coated with order are imports of certain corrosion- first layer consisting of a copper-lead plastics or other nonmetallic substances resistant carbon steel flat products alloy powder that is balance copper, 9% in addition to the metallic coating, in meeting the following specifications: to 11% tin, 9% to 11% lead, less than

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1% zinc, less than 1% other materials of SAE standard 792 for Bearing and 4.90mm in overall thickness, a and meeting the requirements of SAE Bushing Alloys, the second layer minimum of and including 76.00mm to standard 792 for Bearing and Bushing consisting of 13%–17% carbon, 13%– a maximum of and including 250.00mm Alloys, the second layer consisting of 17% aromatic polyester, with a balance in overall width, with a low carbon steel 45% to 55% lead, 38% to 50% PTFE, (approx. 66%–74%) of back comprised of: carbon under 0.10%, 3% to 5% molybdenum disulfide and polytetrafluorethylene (PTFE); and (2) manganese under 0.40%, phosphorous less than 2% other materials. See carbon steel flat products measuring under 0.04%, sulfur under 0.05%, and Certain Corrosion-Resistant Carbon 1.02 millimeters in thickness and 10.7 silicon under 0.05%; clad with Steel Flat Products From Japan: Final millimeters in width consisting of aluminum alloy comprised of: under Results of Changed Circumstances carbon steel coil (SAE 1008) with a two- 2.51% copper, under 15.10% tin, and Review, and Revocation in Part of layer lining, the first layer consisting of remainder aluminum as listed on the Antidumping Duty Order, 64 FR 57032 a copper-lead alloy powder that is mill specification sheet. See Certain (October 22, 1999). balance copper, 9%–11% tin, 9%–11% Corrosion-Resistant Carbon Steel Flat Also excluded from the scope of the lead, less than 0.35% iron, and meeting Products From Japan: Notice of Final order are imports of doctor blades the requirements of SAE standard 792 Results of Changed Circumstances meeting the following specifications: for Bearing and Bushing Alloys, the Review, and Revocation in Part of carbon steel coil or strip, plated with second layer consisting of 45%–55% Antidumping Duty Order, 67 FR 7356 nickel phosphorous, having a thickness lead, 3%–5% molybdenum disulfide, (February 19, 2002). of 0.1524 millimeters (0.006 inches), a with a balance (approx. 40%–52%) of Also excluded from this order are width between 31.75 millimeters (1.25 polytetrafluorethylene (PTFE). See products meeting the following inches) and 50.80 millimeters (2.00 Certain Corrosion-Resistant Carbon specifications: (1) Diffusion annealed, inches), a core hardness between 580 to Steel Flat Products From Japan: Notice non-alloy nickel-plated carbon 630 HV, a surface hardness between of Final Results of Changed products, with a substrate of cold-rolled 900–990 HV; the carbon steel coil or Circumstances Review, and Revocation battery grade sheet (‘‘CRBG’’) with both strip consists of the following elements in Part of Antidumping Duty Order, 66 sides of the CRBG initially identified in percentage by weight: FR 15075 (March 15, 2001) electrolytically plated with pure, 0.90% to 1.05% carbon; 0.15% to 0.35% Also excluded from this order are unalloyed nickel and subsequently silicon; 0.30% to 0.50% manganese; less products meeting the following annealed to create a diffusion between than or equal to 0.03% of phosphorous; specifications: carbon steel coil or strip, less than or equal to 0.006% of sulfur; measuring 1.93 millimeters or 2.75 the nickel and iron substrate, with the other elements representing 0.24%; and millimeters (0.076 inches or 0.108 nickel plated coating having a thickness the remainder of iron. See Certain inches) in thickness, 87.3 millimeters or of 0–5 microns per side with one side Corrosion-Resistant Carbon Steel Flat 99 millimeters (3.437 inches or 3.900 equaling at least 2 microns; and with the Products From Japan: Final Results of inches) in width, with a low carbon nickel carbon sheet having a thickness Changed Circumstances Review, and steel back comprised of: carbon under of from 0.004’’ (0.10mm) to 0.030’’ Revocation in Part of Antidumping Duty 8%, manganese under 0.4%, (0.762mm) and conforming to the Order, 65 FR 53983 (September 6, 2000). phosphorous under 0.04%, and sulfur following chemical specifications (%): C Also excluded from the scope of the under 0.05%; clad with aluminum alloy <= 0.08; Mn <= 0.45; P <= 0.02; S <= order are imports of carbon steel flat comprised of: 0.7% copper, 12% tin, 0.02; Al <= 0.15; and Si <= 0.10; and the products meeting the following 1.7% lead, 0.3% antimony, 2.5% following physical specifications: specifications: carbon steel flat products silicon, 1% maximum total other Tensile = 65 KSI maximum; Yield = 32– measuring 1.64 millimeters in thickness (including iron), and remainder 55 KSI; Elongation = 18% minimum and 19.5 millimeters in width consisting aluminum. Also excluded from this (aim 34%); Hardness = 85–150 Vickers; of carbon steel coil (SAE 1008) with a order are products meeting the Grain Type = Equiaxed or Pancake; lining clad with an aluminum alloy that following specifications: carbon steel Grain Size (ASTM) = 7–12; Delta r value is balance aluminum; 10 to 15% tin; 1 coil or strip, clad with aluminum, = aim less than +/-0.2; Lankford value to 3% lead; 0.7 to 1.3% copper; 1.8 to measuring 1.75 millimeters (0.069 = <== 1.2.; and (2) next generation 3.5% silicon; 0.1 to 0.7% chromium; inches) in thickness, 89 millimeters or diffusion-annealed nickel plate meeting less than 1% other materials and 94 millimeters (3.500 inches or 3.700 the following specifications: (a) nickel- meeting the requirements of SAE inches) in width, with a low carbon graphite plated, diffusion annealed, tin- standard 783 for Bearing and Bushing steel back comprised of: carbon under nickel plated carbon products, with a Alloys. See Certain Corrosion-Resistant 8%, manganese under 0.4%, natural composition mixture of nickel Carbon Steel Flat Products From Japan: phosphorous under 0.04%, and sulfur and graphite electrolytically plated to Final Results of Changed Circumstances under 0.05%; clad with aluminum alloy the top side of diffusion annealed tin- Review, and Revocation in Part of comprised of: 0.7% copper, 12% tin, nickel plated carbon steel strip with a Antidumping Duty Order, 66 FR 8778 1.7% lead, 2.5% silicon, 0.3% cold rolled or tin mill black plate base (February 2, 2001). antimony, 1% maximum total other metal conforming to chemical Also excluded from the scope of the (including iron), and remainder requirements based on AISI 1006; order are carbon steel flat products aluminum. See Certain Corrosion- having both sides of the cold rolled meeting the following specifications: (1) Resistant Carbon Steel Flat Products substrate electrolytically plated with Carbon steel flat products measuring From Japan: Notice of Final Results of natural nickel, with the top side of the 0.975 millimeters in thickness and 8.8 Changed Circumstances Review, and nickel plated strip electrolytically millimeters in width consisting of Revocation in Part of Antidumping Duty plated with tin and then annealed to carbon steel coil (SAE 1012) clad with Order, 66 FR 20967 (April 26, 2001). create a diffusion between the nickel a two-layer lining, the first layer Also excluded from this order are and tin layers in which a nickel-tin consisting of a copper-lead alloy powder products meeting the following alloy is created, and an additional layer that is balance copper, 9%–11% tin, specifications: carbon steel coil or strip, of mixture of natural nickel and graphite 9%–11% lead, maximum 1% other measuring a minimum of and including then electrolytically plated on the top materials and meeting the requirements 1.10mm to a maximum of and including side of the strip of the nickel-tin alloy;

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having a coating thickness: top side: iron substrate; another layer of the Antidumping Duty Order, 67 FR 47768 nickel-graphite, tin-nickel layer <== 1.0 natural nickel-phosphorous then (July 22, 2002). micrometers; tin layer only <== 0.05 electrolytically plated on the top side of Also excluded from this order are micrometers, nickel-graphite layer only the nickel plated steel strip; with the products meeting the following <= 0.2 micrometers, and bottom side: nickel-phosphorous, nickel plated specifications: (1) Widths ranging from nickel layer <== 1.0 micrometers; (b) material sufficiently ductile and 10 millimeters (0.394 inches) through nickel-graphite, diffusion annealed, adherent to the substrate to permit 100 millimeters (3.94 inches); (2) nickel plated carbon products, having a forming without cracking, flaking, thicknesses, including coatings, ranging natural composition mixture of nickel peeling or any other evidence of from 0.11 millimeters (0.004 inches) and graphite electrolytically plated to separation; having a coating thickness: through 0.60 millimeters (0.024 inches); the top side of diffusion annealed nickel top side: nickel-phosphorous, nickel and (3) a coating that is from 0.003 plated steel strip with a cold rolled or layer <== 1.0 micrometers; nickel- millimeters (0.00012 inches) through tin mill black plate base metal phosphorous layer <== 0.1 micrometers; 0.005 millimeters (0.000196 inches) in thickness and that is comprised of either conforming to chemical requirements bottom side : nickel layer <== 1.0 two evenly applied layers, the first layer based on AISI 1006; with both sides of micrometers; (e) diffusion annealed, tin- consisting of 99% zinc, 0.5% cobalt, the cold rolled base metal initially nickel plated products, electrolytically electrolytically plated with natural and 0.5% molybdenum, followed by a plated with natural nickel to the top layer consisting of phosphate, or three nickel, and the material then annealed side of a diffusion annealed tin-nickel to create a diffusion between the nickel evenly applied layers, the first layer plated cold rolled or tin mill black plate consisting of 99% zinc, 0.5% cobalt, and the iron substrate; with an base metal conforming to the chemical and 0.5% molybdenum followed by a additional layer of natural nickel- requirements based on AISI 1006; with layer consisting of phosphate, and graphite then electrolytically plated on both sides of the cold rolled strip finally a layer consisting of silicate. See the top side of the strip of the nickel initially electrolytically plated with Certain Corrosion-Resistant Carbon plated steel strip; with the nickel- natural nickel, with the top side of the Steel Flat Products From Japan: Notice graphite, nickel plated material nickel plated strip electrolytically of Final Results of Changed sufficiently ductile and adherent to the plated with tin and then annealed to Circumstances Review, and Revocation substrate to permit forming without create a diffusion between the nickel in Part of Antidumping Duty Order, 67 cracking, flaking, peeling, or any other and tin layers in which a nickel-tin FR 57208 (September 9, 2002). evidence of separation; having a coating alloy is created, and an additional layer Also excluded from this order are thickness: top side: nickel-graphite, tin- of natural nickel then electrolytically products meeting the following nickel layer <== 1.0 micrometers; plated on the top side of the strip of the specifications: (1) Flat-rolled products nickel-graphite layer <== 0.5 nickel-tin alloy; sufficiently ductile and (provided for in HTSUS subheading micrometers; bottom side: nickel layer adherent to the substrate to permit 7210.49.00), other than of high-strength <== 1.0 micrometers; (c) diffusion forming without cracking, flaking, steel, known as ‘‘ASE Iron Flash’’ and annealed nickel-graphite plated peeling or any other evidence of either: (A) having a base layer of zinc- products, which are cold-rolled or tin separation; having coating thickness: based zinc-iron alloy applied by hot- mill black plate base metal conforming top side: nickel-tin-nickel combination dipping and a surface layer of iron-zinc to the chemical requirements based on layer <== 1.0 micrometers; tin layer alloy applied by electrolytic process, the AISI 1006; having the bottom side of the weight of the coating and plating not base metal first electrolytically plated only <== 0.05 micrometers; bottom side: nickel layer <== 1.0 micrometers; and over 40 percent by weight of zinc; or (B) with natural nickel, and the top side of two-layer-coated corrosion-resistant the strip then plated with a nickel- (f) tin mill products for battery containers, tin and nickel plated on a steel with a coating composed of (a) a graphite composition; with the strip base coating layer of zinc-based zinc- then annealed to create a diffusion of cold rolled or tin mill black plate base metal conforming to chemical iron alloy by hot-dip galvanizing the nickel-graphite and the iron process, and (b) a surface coating layer requirements based on AISI 1006; substrate on the bottom side; with the of iron-zinc alloy by electro-galvanizing having both sides of the cold rolled nickel-graphite and nickel plated process, having an effective amount of substrate electrolytically plated with material sufficiently ductile and zinc up to 40 percent by weight, and (2) adherent to the substrate to permit natural nickel; then annealed to create corrosion resistant continuously forming without cracking, flaking, a diffusion of the nickel and iron annealed flat-rolled products, peeling, or any other evidence of substrate; then an additional layer of continuous cast, the foregoing with separation; having coating thickness: natural tin electrolytically plated on the chemical composition (percent by top side: nickel-graphite layer <== 1.0 top side; and again annealed to create a weight): carbon not over 0.06 percent by micrometers; bottom side: nickel layer diffusion of the tin and nickel alloys; weight, manganese 0.20 or more but not <== 1.0 micrometers; (d) nickel- with the tin-nickel, nickel plated over 0.40, phosphorus not over 0.02, phosphorous plated diffusion annealed material sufficiently ductile and sulfur not over 0.023, silicon not over nickel plated carbon product, having a adherent to the substrate to permit 0.03, aluminum 0.03 or more but not natural composition mixture of nickel forming without cracking, flaking, over 0.08, arsenic not over 0.02, copper and phosphorus electrolytically plated peeling or any other evidence of not over 0.08 and nitrogen 0.003 or to the top side of a diffusion annealed separation; having a coating thickness: more but not over 0.008; and meeting nickel plated steel strip with a cold top side: nickel-tin layer <== 1 the characteristics described below: (A) rolled or tin mill black plate base metal micrometer; tin layer alone <== 0.05 Products with one side coated with a conforming to the chemical micrometers; bottom side: nickel layer nickel-iron-diffused layer which is less requirements based on AISI 1006; with <== 1.0 micrometer. See Certain than 1 micrometer in thickness and the both sides of the base metal initially Corrosion-Resistant Carbon Steel Flat other side coated with a two-layer electrolytically plated with natural Products From Japan: Notice of Final coating composed of a base nickel-iron- nickel, and the material then annealed Results of Changed Circumstances diffused coating layer and a surface to create a diffusion of the nickel and Review, and Revocation in Part of coating layer of annealed and softened

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pure nickel, with total coating thickness Short description ...... Diffusion annealed, of the domestic like product to which for both layers of more than 2 non-alloy nickel- the part of the order to be revoked micrometers; surface roughness (RA- plated steel sheet pertains previously have expressed a microns) 0.18 or less; with scanning (‘‘cold rolled battery lack of interest in the application of the electron microscope (SEM) not revealing grade sheet’’ or order to virtually identical products. See oxides greater than 1 micron; and ‘‘CRBG’’) with an Certain Corrosion-Resistant Carbon inclusion groups or clusters shall not unalloyed nickel Steel Flat Products From Japan: Notice plated coating. exceed 5 microns in length; (B) products Thickness of nickel- 0–8 microns with both of Final Results of Changed having one side coated with a nickel- plated coating. sides having a Circumstances Review, and Revocation iron-diffused layer which is less than 1 coating of at least in Part of Antidumping Duty Order, 67 micrometer in thickness and the other 0.2 microns. FR 47768 (July 22, 2002). In this case, side coated with a four-layer coating Thickness of CRBG .. 0.035 mm to 0.762 the Department finds that the composed of a base nickel-iron-diffused mm. information submitted provides coating layer; with an inner middle Chemical Specifica- sufficient evidence of changed tions: coating layer of annealed and softened ≤ circumstances to warrant review, pure nickel, an outer middle surface Carbon (C) ...... 0.03 therefore, the Department is initiating Manganese (Mn) ... ≤0.60 coating layer of hard nickel and a Phosphorus (P) ..... ≤0.04 this changed circumstances review. topmost nickel-phosphorus-plated layer; Sulfur (S) ...... ≤0.04 Given Metal One’s assertion, we will with combined coating thickness for the Aluminum (Al) ...... ≤0.15 consider whether there is interest in four layers of more than 2 micrometers; Silicon (Si) ...... ≤0.10 continuing the order with respect to the surface roughness (RA-microns) 0.18 or Mechanical Specifica- product identified by this review on the less; with SEM not revealing oxides tions: part of the U.S. industry. ≤ greater than 1 micron; and inclusion Tensile strength ..... 70 KSI Maximum Public Comment groups or clusters shall not exceed 5 Yield ...... 22–55 KSI Elongation ...... 18% Minimum microns in length; (C) products having Hardness ...... 85–150 Vickers Interested parties may submit one side coated with a nickel-iron- Grain Type ...... Equiaxed or Pancake comments which the Department will diffused layer which is less than 1 Grain Size (ASTM) 7–12 take into account in the preliminary micrometer in thickness and the other Delta r value ...... ±0.3 results of this review. The due date for ≥ side coated with a three-layer coating Lankford value ...... 0.7 filing any such comments is no later composed of a base nickel-iron-diffused than 20 days after publication of this coating layer, with a middle coating Initiation of Changed Circumstances notice. Responses to those comments layer of annealed and softened pure Review may be submitted not later than 10 days nickel and a surface coating layer of Pursuant to sections 751(d)(1) and following submission of the comments. hard, luster-agent-added nickel which is 782(h)(2) of the Tariff Act of 1930, as All written comments must be not heat-treated; with combined coating amended (the Act), the Department may submitted in accordance with 19 CFR thickness for all three layers of more revoke an antidumping or 351.303. than 2 micrometers; surface roughness countervailing duty order based on a The Department will publish in the (RA-microns) 0.18 or less; with SEM not review under section 751(b) of the Act revealing oxides greater than 1 micron; Federal Register a notice of preliminary (i.e., a changed circumstances review). results of antidumping duty changed and inclusion groups or clusters shall Section 751(b)(1) of the Act requires a not exceed 5 microns in length; or (D) circumstances review, in accordance changed circumstances review to be with 19 CFR 351.221(b)(4) and 19 CFR products having one side coated with a conducted upon receipt of a request nickel-iron-diffused layer which is less 351.221(c)(3)(i). This notice will set which shows changed circumstances forth the factual and legal conclusions than 1 micrometer in thickness and the sufficient to warrant a review. other side coated with a three-layer upon which our preliminary results are Section 351.222(g) of the based and a description of any action coating composed of a base nickel-iron- Department’s regulations provides that diffused coating layer, with a middle proposed based on those results. the Department may revoke an order (in Pursuant to 19 CFR 351.221(b)(4)(ii), coating layer of annealed and softened whole or in part), if it determines that pure nickel and a surface coating layer interested parties will have an producers accounting for substantially opportunity to comment on the of hard, pure nickel which is not heat- all of the production of the domestic treated; with combined coating preliminary results of review. In like product to which the order (or the accordance with section 751(b)(4)(B) of thickness for all three layers of more part of the order to be revoked) pertains than 2 micrometers; surface roughness the Act and 19 CFR 351.216(e), the have expressed a lack of interest in the Department will issue the final results (RA-microns) 0.18 or less; SEM not relief provided by the order, in whole or revealing oxides greater than 1 micron; of its antidumping duty changed in part, or if changed circumstances circumstances review not later than 270 and inclusion groups or clusters shall exist sufficient to warrant revocation. not exceed 5 microns in length. See days after the date on which the review Section 351.222(g)(2) of the is initiated. We are issuing and Certain Corrosion-Resistant Carbon Department’s regulations require the Steel Flat Products From Japan: Notice publishing this notice in accordance Secretary to conduct a changed with sections 751(b)(1) and 777(I)(1) of of Final Results of Changed circumstance review under section Circumstances Review, and Revocation the Act and section 351.216 of the 351.216 of the Department’s regulations Department’s regulations. in Part of Antidumping Duty Order, 68 if at any time the Secretary concludes FR 19970 (April 23, 2003). from the available information that Dated: November 30, 2004. James J. Jochum, Merchandise Subject to This Review changed circumstances sufficient to warrant revocation may exist. Assistant Secretary for Import Metal One defines certain diffusion Citing the Department’s July 22, 2002, Administration. annealed nickel-plate as meeting the final results of changed circumstances [FR Doc. E4–3527 Filed 12–6–04; 8:45 am] following specifications: review, Metal One states that producers BILLING CODE 3510–DS–P

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DEPARTMENT OF COMMERCE request an administrative review of the Separate Rates antidumping duty order on fresh garlic The Department has treated the PRC International Trade Administration from the PRC. See Antidumping or as a non–market-economy (NME) [A–570–831] Countervailing Duty Order, Finding, or country in all past antidumping Suspended Investigation; Opportunity investigations (see, e.g., Notice of Final Fresh Garlic from the People’s to Request Administrative Review, 68 Determination of Sales at Less Than Republic of China: Preliminary Results FR 62279. On December 24, 2003, we Fair Value: Bulk Aspirin From the of Antidumping Duty Administrative published the Notice of Initiation of People’s Republic of China, 65 FR 33805 Review and Rescission in Part Antidumping and Countervailing Duty (May 25, 2000), and Notice of Final Administrative Reviews (68 FR 74550), AGENCY: Import Administration, Determination of Sales at Less Than in which we initiated the 2002–2003 Fair Value: Certain Non–Frozen Apple International Trade Administration, administrative review of the Juice Concentrate from the People’s Department of Commerce. antidumping duty order on fresh garlic Republic of China, 65 FR 19873 (April SUMMARY: In response to requests from from the PRC. interested parties, the Department of On July 15, 2004, we extended the 13, 2000)) and in prior segments of this Commerce (the Department) is deadline for the issuance of the proceeding. A designation as an NME conducting an administrative review of preliminary results of the administrative remains in effect until it is revoked by the antidumping duty order on fresh review by 120 days, until November 29, the Department. See section 771(18)(C) garlic from the People’s Republic of 2004 (69 FR 42418). We are conducting of the Act. Accordingly, there is a China (PRC). The period of review for this review in accordance with section rebuttable presumption that all this administrative review is November 751(a)(1) of the Tariff Act of 1930, as companies within the PRC are subject to 1, 2002, through October 31, 2003. amended (the Act). government control and, thus, should be Three companies named in the assessed a single antidumping duty rate. Scope of the Order initiation of this review made no It is the Department’s standard policy exports or sales of the subject The products subject to the to assign all exporters of the merchandise during the period of antidumping duty order are all grades of merchandise subject to review in NME review and, consequently, we are garlic, whole or separated into countries a single rate unless an rescinding the review for these constituent cloves, whether or not exporter can affirmatively demonstrate companies. In addition, we are peeled, fresh, chilled, frozen, an absence of government control, both rescinding our review of a fourth provisionally preserved, or packed in in law (de jure) and in fact (de facto), company because the petitioners water or other neutral substance, but not with respect to exports. To establish withdrew their request for a review of prepared or preserved by the addition of whether a company is sufficiently that company. We are also rescinding other ingredients or heat processing. independent to be entitled to a separate, our review of a fifth company because The differences between grades are company–specific rate, the Department its sale to the United States is not based on color, size, sheathing, and analyzes each exporting entity in an eligible for review. Therefore, this level of decay. NME country under the test established review covers twelve manufacturers/ The scope of this order does not in the Final Determination of Sales at exporters of the subject merchandise. include the following: (a) garlic that has Less than Fair Value: Sparklers from the We preliminarily determine that nine been mechanically harvested and that is People’s Republic of China, 56 FR 20588 of these companies have made sales in primarily, but not exclusively, destined (May 6, 1991), as amplified by the the United States at prices below normal for non–fresh use; or (b) garlic that has Notice of Final Determination of Sales value. Further, we preliminarily been specially prepared and cultivated at Less Than Fair Value: Silicon Carbide determine that the remaining three prior to planting and then harvested and from the People’s Republic of China, 59 companies are not entitled to separate otherwise prepared for use as seed. FR 22585 (May 2, 1994) (Silicon rates and have assigned them the rate The subject merchandise is used Carbide). for the PRC–wide entity. principally as a food product and for For the reasons discussed in the We invite interested parties to seasoning. The subject garlic is section below entitled ‘‘The PRC–Wide comment on these preliminary results. currently classifiable under subheadings Rate and Use of Facts Otherwise Parties who submit comments are 0703.20.0010, 0703.20.0020, Available,’’ we have determined that requested to submit with each argument 0703.20.0090, 0710.80.7060, Jinxiang Hongyu Freezing and Storing a statement of the issue and a brief 0710.80.9750, 0711.90.6000, and Co., Ltd. (Hongyu), Linyi Sanshan summary of the argument. 2005.90.9700 of the Harmonized Tariff Import and Export Trading Co., Ltd. Schedule of the United States (HTSUS). (Linyi Sanshan), and Tancheng County EFFECTIVE DATE: December 7, 2004. Although the HTSUS subheadings are Dexing Foods Co., Ltd. (Dexing Foods) FOR FURTHER INFORMATION CONTACT: provided for convenience and customs do not qualify for a separate rate and are Coleen Schoch or Brian Ledgerwood, purposes, the written description of the instead part of the PRC entity. China/NME Unit, Office of AD/CVD scope of this proceeding is dispositive. Jinxiang Dong Yun Freezing Storage Operations, Import Administration, In order to be excluded from the Co., Ltd. (Dong Yun), Fook Huat Tong International Trade Administration, antidumping duty order, garlic entered Kee Pte., Ltd. (FHTK), Huaiyang Hongda U.S. Department of Commerce, 14th under the HTSUS subheadings listed Dehydrated Vegetable Company Street and Constitution Avenue, NW, above that is (1) mechanically harvested (Hongda), Jinan Yipin Corporation, Ltd. Washington, DC 20230; telephone (202) and primarily, but not exclusively, (Jinan Yipin), Linshu Dading Private 482–4551 or (202) 482–3836, destined for non–fresh use or (2) Agricultural Products Co., Ltd. (Linshu respectively. specially prepared and cultivated prior Dading), Sunny Import & Export SUPPLEMENTARY INFORMATION: to planting and then harvested and Limited (Sunny), Taian Ziyang Food otherwise prepared for use as seed must Co., Ltd (Ziyang), Jining Trans–High Background be accompanied by declarations to U.S. Trading Co., Ltd. (Trans–High), and On November 3, 2003, the Department Customs and Border Protection (CBP) to Zhengzhou Harmoni Spice Co., Ltd. published a notice of opportunity to that effect. (Harmoni), all provided the requested

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separate–rate information in their control is critical in determining merchandise during the POR that are responses to our original and whether respondents are, in fact, subject subject to the administrative review. supplemental questionnaires. to a degree of governmental control Therefore, in accordance with 19 CFR Accordingly, consistent with &, 61 FR which would preclude the Department 351.213(d)(3), we are rescinding our 56570 (April 30, 1996), we performed from assigning separate rates. review with respect to these three separate–rates analyses to determine FHTK and Harmoni reported that they companies. whether each producer/exporter is are wholly owned by foreign entities; On January 13, 2004, the petitioners independent from government control. Sunny and Ziyang reported that they are withdrew their request for an limited–liability companies owned by administrative review of Xiangcheng 1. Absence of De Jure Control private investors. Hongda, Dong Yun, Yisheng Foodstuffs Co. (Yisheng). The Department considers the Jinan Yipin, Linshu Dading, and Trans– Therefore, we are rescinding our review following de jure criteria in determining High reported that they are limited– of Yisheng for this POR, pursuant to 19 whether an individual company may be liability companies. Each has asserted CFR 351.213(d)(1). granted a separate rate: (1) An absence the following: (1) There is no We are also rescinding our review of of restrictive stipulations associated government participation in setting H&T Trading Company (H&T). H&T with an individual exporter’s business export prices; (2) sales managers and requested a new shipper review and and export licenses; (2) any legislative authorized employees have the administrative review at the same time. enactments decentralizing control of authority to bind sales contracts; (3) In the course of our initial examination companies; (3) any other formal they do not have to notify any of the new shipper request, we measures by the government government authorities of management discovered that H&T was a Hong Kong– decentralizing control of companies. selections; (4) there are no restrictions based exporter that purchased the With the exception of Hongyu, Lingi on the use of export revenue; (5) each subject merchandise from a Chinese Sanshan, and Dexing Foods, each is responsible for financing its own supplier, Jining Jinshan. Additional respondent has placed on the record a losses. The questionnaire responses of information demonstrated that Jining number of documents to demonstrate FHTK, Hongda, Jinan Yipin, Trans– Jinshan had knowledge H&T would absence of de jure control including the High, Dong Yun, Linshu Dading, Sunny, export the subject merchandise it ‘‘Foreign Trade Law of the People’s Ziyang, and Harmoni do not suggest that purchased to the United States. Republic of China’’ and the pricing is coordinated among exporters. Pursuant to section 772(a) of the Act, ‘‘Administrative Regulations of the During our analysis of the information the first party in the chain of People’s Republic of China Governing on the record, we found no information distribution with knowledge of its U.S. the Registration of Legal Corporations.’’ indicating the existence of government destination is the appropriate party to The Department has analyzed such PRC control. Consequently, we preliminarily review. See Fresh Garlic from the laws and found that they establish an determine that FHTK, Hongda, Jinan People’s Republic of China: Preliminary absence of de jure control. See, e.g., Yipin, Trans–High, Dong Yun, Linshu Results of Antidumping Duty Preliminary Results of New Shipper Dading, Sunny, Ziyang, and Harmoni Administrative Review, Partial Review: Certain Preserved Mushrooms have met the criteria for the application Rescission of Administrative Review, From the People’s Republic of China, 66 of a separate rate. and Intent to Rescind Administrative FR 30695 (June 7, 2001). We have no Review in Part, 68 FR 4758, 4759 information in this proceeding that Partial Rescission of Administrative (January 30, 2003). Because of this would cause us to reconsider this Review knowledge and the fact that the sale determination. In response to our December 30, 2003, between Jining Jinshan and H&T was letter requesting quantity and value the first non–intra-NME sale in the 2. Absence of De Facto Control information, three companies responded chain of distribution, the transaction Typically, the Department considers that they had made no exports of the between Jining Jinshan and H&T is the four factors in evaluating whether a subject merchandise during the period appropriate basis for determining the respondent is subject to de facto of review (POR). These companies were export price. Therefore, review of H&T governmental control of its export Clipper Manufacturing Ltd. (Clipper), is not appropriate and the Department is functions: (1) whether the export prices Shandong Heze International Trade and now rescinding its initiation of the are set by, or subject to, the approval of Developing Co. (Shandong Heze), and review of H&T. Further, the Department a governmental authority; (2) whether Shanghai Ever Rich Trade Company did not receive a request for an the respondent has authority to (Ever Rich). These individual responses administrative review of Jining Jinshan negotiate and sign contracts, and other are discussed in and attached to the prior to or during the anniversary month agreements; (3) whether the respondent Questionnaire Response Memorandum of the publication of the antidumping has autonomy from the government in to Laurie Parkhill, dated November 29, duty order. See 19 CFR 351.214(d). See making decisions regarding the 2004 (Questionnaire Response Memo). Memorandum from Mark Ross to Laurie selection of its management; (4) whether Each of the companies responded that Parkhill Regarding Intent to Rescind the the respondent retains the proceeds of they were not producers or exporters of Administrative Review with Respect to its export sales and makes independent the subject merchandise during the H&T Trading Company (January 29, decisions regarding disposition of POR. We examined CBP data to confirm 2004). profits or financing of losses. See Silicon that none of them was listed as a Carbide at 22587. manufacturer or exporter of the subject The PRC–Wide Rate and Use of Facts As stated in previous cases, there is merchandise on entries during the POR. Otherwise Available some evidence that certain enactments In addition, there is no information on All respondents were given the of the PRC central government have not the record to indicate that these opportunity to respond to the been implemented uniformly among companies had sales or exports of Department’s questionnaire. As different sectors and/or jurisdictions in subject merchandise during the POR. As explained above, we received the PRC. See Silicon Carbide at 22586– a result, we find that Clipper, Shandong questionnaire responses from FHTK, 22587. Therefore, the Department has Heze, and Ever Rich made no entries, Hongda, Jinan Yipin, Trans–High, Dong determined that an analysis of de facto exports, or sales of the subject Yun, Linshu Dading, Sunny, Ziyang,

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and Harmoni and we have calculated a administrative review, or any other Similarly, no information has been separate rate for each of these information placed on the record. presented in the current review that companies. The PRC–wide rate applies On December 30, 2003, the calls into question the reliability of this to all entries of subject merchandise Department issued its antidumping duty information. Thus, the Department finds except for entries from companies that questionnaire to Hongyu, Linyi that the information is reliable. have received their own rate based on Sanshan, and Dexing Foods. We With respect to the relevance aspect the final results of a prior segment of confirmed that the questionnaires we of corroboration, the Department stated this proceeding (e.g., Jinan Yipin). As sent to Hongyu and Linyi Sanshan were in Tapered Roller Bearings and Parts discussed below, we have decided to delivered and accepted on January 6, Thereof, Finished and Unfinished, from treat Hongyu, Linyi Sanshan, and 2004. We also confirmed that a Japan, and Tapered Roller Bearings, Dexing Foods as part of the PRC–wide representative of Dexing Foods picked Four Inches or Less in Outside entity. up its questionnaire from the main Diameter, and Components Thereof, Hongyu, Linyi Sanshan, and Dexing Commerce building. See Questionnaire from Japan; Preliminary Results of Foods did not respond to the Response Memo. Because they did not Antidumping Duty Administrative Department’s questionnaire. Section provide responses to the Department’s Reviews and Partial Termination of 776(a)(2) of the Act provides that, if an questionnaire, the Department is unable Administrative Reviews, 61 FR 57391, interested party or any other person (A) to determine whether Hongyu, Linyi 57392 (November 6, 1996) (TRBs), that withholds information that has been Sanshan, and Dexing Foods are eligible it will ‘‘consider information reasonably requested by the administering for a separate rate. Thus, Hongyu, Linyi at its disposal as to whether there are authority, or (B) fails to provide such Sanshan, and Dexing Foods have not circumstances that would render a information by the deadlines for the rebutted the presumption of government margin irrelevant. Where circumstances submission of the information or in the control and are presumed to be part of indicate that the selected margin is not form and manner requested, subject to the PRC entity. appropriate as adverse facts available, The PRC entity (including Hongyu, subsections (c)(1) and (e) of section 782, the Department will disregard the Linyi Sanshan, and Dexing Foods) failed the Department shall, subject to section margin and determine an appropriate to cooperate to the best of its ability in 782(d), use the facts otherwise available margin.’’ See TRBs, 61 FR at 57392. See this administrative review, thus making in reaching the applicable also Fresh Cut Flowers from Mexico; the use of an adverse inference determination under this title. Preliminary Results of Antidumping appropriate. Therefore, in accordance Duty Administrative Review, 61 FR Furthermore, under section 782(c) of the with the Department’s practice, as 6812, 6814 (February 22, 1996) Act, a respondent has the responsibility adverse facts available, we have (disregarding the highest margin in the not only to notify the Department if it preliminarily assigned to the PRC entity case as best information available is unable to provide requested the rate of 376.67 percent. because the margin was based on information but also to provide a ‘‘full Section 776(c) of the Act requires that another company’s uncharacteristic explanation and suggested alternative the Department corroborate, to the business expense resulting in an forms.’’ Because Hongyu, Linyi extent practicable, a figure which it extremely high margin). The rate we are Sanshan, and Dexing Foods did not applies as facts available. To corroborate using for this review is the rate respond to the questionnaire, we find information, the Department examines currently applicable to Hongyu, Linyi that, in accordance with sections whether it is both reliable and relevant. Sanshan, Dexing Foods, and all 776(a)(2)(A) and (B) of the Act, the use Throughout the history of this exporters subject to the PRC–wide rate. of total facts available is appropriate. proceeding, the highest rate ever Further, there is no information on the See, e.g., Final Results of Antidumping determined is 376.67 percent; it is administrative record of the current Duty Administrative Review for Two currently the PRC–wide rate and was review that indicates the application of Manufacturers/ Exporters: Certain calculated based on information this rate would be inappropriate or that Preserved Mushrooms from the People’s contained in the petition. See Notice of the margin is not relevant. Therefore, for Republic of China, 65 FR 50183, 50184 Final Determination of Sales at Less all sales of subject merchandise (August 17, 2000). Than Fair Value: Fresh Garlic from the exported by Hongyu, Linyi Sanshan, Section 776(b) of the Act provides People’s Republic of China, 59 FR and Dexing Foods we have applied, as that, if the Department finds that an 49058, 49059 (September 26, 1994). The adverse facts available, the 376.67 interested party ‘‘has failed to cooperate information contained in the petition percent margin from a prior by not acting to the best of its ability to was corroborated, to the extent administrative review of this order and comply with a request for information,’’ practicable, for the preliminary results have satisfied the corroboration the Department may use information of the first administrative review. See requirements under section 776(c) of the that is adverse to the interests of the Fresh Garlic from the People’s Republic Act. See Persulfates from the People’s party as facts otherwise available. of China; Preliminary Results of Republic of China: Preliminary Results Adverse inferences are appropriate ‘‘to Antidumping Duty Administrative of Antidumping Duty Administrative ensure that the party does not obtain a Review and Partial Termination of Review, 66 FR 18439, 18441 (April 9, more favorable result by failing to Administrative Review, 61 FR 68229, 2001) (employing a petition rate used as cooperate than if it had cooperated 68230 (December 27, 1996). Further, it adverse facts available in a previous fully.’’ See Statement of Administrative was corroborated in subsequent reviews segment as adverse facts available in the Action (SAA) accompanying the to the extent that the Department current review). Uruguay Round Agreements Act referred to the history of corroboration (URAA), H. Doc. No. 103–316, at 870 and found that the Department received Export Price (1994). Section 776(b) of the Act no information that warranted revisiting For FHTK, Hongda, Trans–High, Dong authorizes the Department to use as the issue. See Fresh Garlic from the Yun, Linshu Dading, Sunny, and Ziyang adverse facts available information People’s Republic of China: Final we based the U.S. price on export price derived from the petition, the final Results of Antidumping Administrative (EP), in accordance with section 772(a) determination from the less–than-fair– Review and Rescission of New Shipper of the Act, because the first sale to an value (LTFV) investigation, a previous Review, 67 FR 11283 (March 13, 2002). unaffiliated purchaser was made prior

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to importation and constructed export purchaser occurred after importation of production valued in a surrogate price (CEP) was not otherwise the merchandise into the United States. market–economy country or countries warranted by the facts on the record. We We calculated the CEP for Jinan Yipin considered to be appropriate by the calculated EP based on the packed price and Harmoni because the sales were Department. In accordance with section from the exporter to the first unaffiliated made by their U.S. affiliates to 773(c)(4) of the Act, in valuing the customer in the United States. unaffiliated U.S. customers. We based factors of production, the Department For FHTK, we made no adjustments CEP on packed, delivered, or ex– shall use, to the extent practicable, the to the gross unit price. warehouse prices to the first unaffiliated prices or costs of factors of production For Hongda, we deducted foreign purchaser in the United States. in one or more market–economy inland freight, international freight, and For Jinan Yipin, we made adjustments countries that are at a level of economic marine insurance from the gross unit to the gross unit price for foreign inland development comparable to the NME price, in accordance with section 772(c) freight from processing facility to port of country and are significant producers of of the Act. exit, international ocean freight, U.S. comparable merchandise. The sources For Trans–High, we deducted foreign inland freight from port to customer, of the surrogate factor values are inland freight and foreign brokerage and other U.S. transportation expenses, U.S. discussed under the ‘‘Factor handling expenses from the gross unit brokerage and handling expenses, U.S. Valuations’’ section below. price, in accordance with section 772(c) warehousing expenses, and U.S. import The Department has determined that of the Act. duties. India, Indonesia, Sri Lanka, the For Dong Yun, we deducted foreign In accordance with section 772(d)(1) Philippines, Morocco, and Egypt are inland freight from production facility of the Act, we also deducted those countries comparable to the PRC in to port of exit, brokerage and handling selling expenses associated with terms of economic development. See expenses, international freight, and economic activities occurring in the Memorandum to Laurie Parkhill from marine insurance expenses. United States, including direct selling Ron Lorentzen regarding the request for For Linshu Dading, we deducted expenses, credit expenses, billing a list of surrogate countries (June 18, foreign inland freight, foreign brokerage adjustments, inventory carrying costs 2004). In addition to being among the and handling expenses, international and indirect selling expenses. We also countries comparable to the PRC in ocean freight, marine insurance, U.S. made an adjustment for profit in economic development, India is a brokerage and handling, U.S. import accordance with section 772(d)(3) of the significant producer of the subject duties, and U.S. inland freight expenses Act. merchandise. We have used India as the from the gross unit price, in accordance For Harmoni, we made deductions, surrogate country and, accordingly, with section 772(c) of the Act. where appropriate, from the gross unit have calculated normal value using For Sunny, we made deductions, price to account for movement Indian prices to value the PRC where appropriate, of foreign inland expenses, foreign inland freight from producers’ factors of production, when freight, foreign brokerage and handling, plant to distribution warehouse, foreign available and appropriate. We have international ocean freight, U.S. brokerage and handling, international obtained and relied upon publicly brokerage and handling, import duties, ocean freight, and U.S. brokerage and available information. See U.S. warehousing expenses, demurrage handling expenses. Memorandum to Laurie Parkhill Re: charges, and U.S. inland freight In accordance with section 772(d)(1) Selection of Surrogate Country expenses from the gross unit price, in of the Act, we also deducted those (November 29, 2004). accordance with section 772(c) of the selling expenses associated with In accordance with 19 CFR Act. economic activities occurring in the 351.301(c)(3)(ii), for the final results of For Ziyang, we deducted foreign United States, including credit an administrative review and a new inland freight and foreign brokerage and expenses, commissions, inventory shipper review, interested parties may submit publicly available information to handling expenses from the gross unit carrying costs, and indirect selling value the factors of production until 20 price, in accordance with section 772(c) expenses. We also made an adjustment days following the date of publication of of the Act. for profit in accordance with section As all foreign inland freight, foreign these preliminary results. 772(d)(3) of the Act. warehousing, foreign brokerage and Because some movement expenses 2. Methodology handling, and marine insurance were provided by NME companies, we expenses (where applicable) were The Department’s general policy, valued those charges based on surrogate provided by PRC service providers or consistent with section 773(c)(1)(B) of values in India. See FOP Memorandum. the Act, is to calculate normal value paid for in renminbi, we valued these For a more detailed explanation of the services using Indian surrogate values using each of the factors of production company–specific adjustments that we (FOPs) that a respondent consumes in (see ‘‘Factors of Production’’ section made in the calculation of the dumping below for further discussion). Where the production of a unit of the subject margins for these preliminary results, merchandise. There are circumstances, applicable, we used the reported see the company–specific preliminary expense for international freight because however, in which the Department will results analysis memoranda, dated modify its standard FOP methodology, the respondents used market–economy November 29, 2004, on file in the freight carriers and paid in a market– choosing to apply a surrogate value to Central Records Unit (CRU), Room B– an intermediate input instead of the economy currency. See ‘‘Memorandum 099. to the File’’ regarding the factors individual FOPs used to produce that valuation for the preliminary results of Normal Value intermediate input. In some cases, a respondent may report factors used to the administrative review (November 1. Surrogate Country 29, 2004) (FOP Memorandum). produce an intermediate input that When investigating imports from an accounts for an insignificant share of Constructed Export Price NME country, section 773(c)(1) of the total output. When the potential In accordance with section 772(b) of Act directs the Department to base increase in accuracy to the overall the Act, we used CEP methodology normal value, in most circumstances, on calculation that results from valuing when the first sale to an unaffiliated the NME producer’s factors of each of the factors of production is

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outweighed by the resources, time, and certain respondents do not appear to be Shipper Review and Final Results and effort such an analysis would place on realistic or credible. Partial Rescission of the Fourth all parties to the proceeding, the More specifically, the Department has Antidumping Duty Administrative Department has valued the intermediate determined that the FOPs pertaining to Review, 69 FR 54635 (September 9, input directly using a surrogate value. the usage of pesticides, herbicides, and/ 2004), and accompanying Issues and See, e.g., Final Determination of Sales at or seed by certain respondents were Decision Memorandum at Comment 3 Less Than Fair Value: Coumarin From extremely questionable and, in some (concerning the application of a the People’s Republic of China, 59 FR instances, not credible. Two internet– modified analysis only to certain 66895–01 (December 28, 1994). published articles regarding garlic respondents, as appropriate). Also, there are circumstances in production in the PRC, Garlic which valuing the FOPs used to yield an Production Technology Regulations, 3. Factors of Production intermediate product would lead to an produced by the Kuming Tong Safe Section 773(c)(1) of the Act provides inaccurate result because the Science and Technology Company, and that the Department shall determine the Department would not be able to Environmentally Safe Garlic Production normal value using a FOP methodology account for a significant element of cost Technology Regulations, produced by if (1) the merchandise is exported from adequately in the overall factors Hebei Standards, provided objective an NME country and (2) the information buildup. In this situation, the ranges for the common commercial does not permit the calculation of Department would also value the usage of these particular factors. See normal value using home–market intermediate input directly. For Research Memo at Attachments 1 and 2. prices, third–country prices, or example, in a recent case, the In addition, the Department observed constructed value under section 773(a) Department determined that, if it were major discrepancies among the FOPs of the Act. Factors of production to value the respondent’s factors used in reported by different respondents. The include the following elements: (1) extracting iron ore, an input to wire rod, Department also found large differences hours of labor required, (2) quantities of it would not account sufficiently for the in the water–usage factors reported by raw materials employed, (3) amounts of associated capital costs, given that the certain respondents located in the same energy and other utilities consumed, surrogate company it used for valuing area, but it could not find reliable third– and (4) representative capital costs. overhead did not have mining party data with which to compare the Except as discussed above, we used operation. See Notice of Final factors. It is the Department’s position FOPs reported by the respondents for Determination of Sales at Less Than that, if FOPs reported to the Department materials, energy, labor, and packing. Fair Value: Carbon and Certain Alloy appear highly improbable and lack We valued all the input factors using Steel Wire Rod from Ukraine, 67 FR credibility, it has an obligation to publicly available, published 55785 (August 30, 2002), and Final address the resultant inadequacy in its information, as discussed in the Determination of Sales at Less Than calculations. ‘‘Surrogate Country’’ and ‘‘Factor Fair Value: Certain Hot–Rolled Carbon In light of the above, the Department Valuations’’ sections of this notice. finds that the FOP methodology is Steel Flat Products from the People’s 4. Factor Valuations Republic of China, 66 FR 49632 insufficient to provide an accurate result (September 28, 2001). for certain respondents, based on the In accordance with section 773(c) of In other cases, after careful unreliability of their reported FOP usage the Act, we calculated normal value consideration of the record, the rates. In order to calculate a more based on FOPs reported by the Department has determined that valuing accurate margin for these companies, respondents for the POR. To calculate the intermediate input for the the Department has chosen to apply the normal value, we multiplied the production of subject merchandise will intermediate–product FOP methodology reported per–unit factor quantities by lead to a more accurate result than to those respondents with questionable publicly available surrogate values in valuing the individual FOPs. See FOPs. The respondents affected are India with the exception of the surrogate Certain Frozen Fillets from the Socialist Trans–High, Ziyang, Dong Yun, FHTK, value for ocean freight, which we Republic of Vietnam: Notice of and Hongda. For a complete explanation obtained from an international freight Preliminary Determination of Sales at of the Department’s analysis, see company. In selecting the surrogate Less Than Fair Value 68 FR 498, 449 Memorandum from Edward Yang to values, we considered the quality, (January 31, 2003), and Certain Frozen Barbara E. Tillman Re: Modification of specificity, and contemporaneity of the Fillets from the Socialist Republic of Factors–of-Production Methodology data. As appropriate, we adjusted input Vietnam: Notice of Final Determination (November 29, 2004). prices by including freight costs to make of Sales at Less Than Fair Value, 68 FR The Department is re-opening the them delivered prices. We calculated 37116 (June 16, 2003). record of this segment to the interested these freight costs based on the shortest In this review, we determine that it is parties for 21 days after the publication reported distance from the domestic appropriate to apply a modified FOP of these preliminary results in order to supplier to the factory and Indian methodology with respect to certain obtain additional independent third– surrogate values. This adjustment is in respondents. We conducted a full party information regarding the accordance with the decision in Sigma analysis of the information put on the disparate usage rates which these five Corporation v. United States, 117 F. 3d record by the interested parties and respondents have provided. The 1401, 1407–08 (Fed. Cir. 1997). We conducted independent research into Department will fully consider any converted prices reported in Indian standard garlic–growing procedures in additional information before rupees (Rs) to US dollars (USDs) using the PRC. See Memorandum from Steve completing the final results of this the average exchange rate obtained from Williams to the File Re: Research on administrative review. the official Import Administration Web Chinese Production and Costs With respect to the remaining site (http://ia.ita.doc.gov/exchange/ (November 29, 2004) (Research Memo). respondents, we find that the standard india.txt). For a detailed description of Based on the information discussed in FOP analysis remains appropriate. See all the surrogate values we used, see the this memo, as well as all the Certain Preserved Mushrooms from the FOP Memorandum. information currently on the record, the People’s Republic of China: Final For those Indian rupee values not divergent usage rates provided by Results of Sixth Antidumping Duty New contemporaneous with the POR, we

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adjusted for inflation using wholesale containers,’’ an article from Dawn Wire Ltd. (‘‘MHPC’’), a non–integrated Indian price indices for India published in the Service (May 19, 1995). honey processor, was most International Monetary Fund’s The respondents claimed an representative of the financial International Financial Statistics. adjustment for revenue earned on the experiences of the respondents for Surrogate–value data or sources to sale of garlic sprouts. We find that which we applied the intermediate– obtain such data were obtained from the sprouts are a by–product of garlic and product FOP methodology because it is petitioners, the respondents, and the deducted an offset amount from normal the only company on record which we Department’s research. value. As a surrogate value for the sale know with certainty processes an Except as specified below, we valued of sprouts in the PRC, we used an intermediate product. Thus, to value raw material inputs using the weighted– average of Indian wholesale prices for factory overhead, selling, general, and average unit import values derived from green onions published by the Azadpur administrative expenses, and profit, we the World Trade Atlas, provided by the Agricultural Produce Marketing used rates based on data taken from the Global Trade Information Services, Inc. Committee in its February 17, 2003, 2003–2004 financial statements of The source of these values March 21, 2003, April 25, 2003, and MHPC. See the FOP Memorandum for a contemporaneous with the POR, was the May 30, 2003, Azadpur Agricultural more complete discussion of the Directorate General of Commercial Produce Marketing Committee Bulletins. Department’s analysis. We valued the truck rate based on an Intelligence and Statistics of the Indian Preliminary Results of the Review Ministry of Commerce and Industry. We average of truck rates that were valued garlic seed based on pricing data published in the Indian publication We preliminarily determine that the from the NHRDF News Letter, published Chemical Weekly during the POR. We following dumping margins exist for the by India’s National Horticultural valued foreign brokerage and handling period November 1, 2002, through Research and Development Foundation. charges based on a value calculated for October 31, 2003: We valued diesel fuel based on data the LTFV investigation of certain hot– from the International Energy Agency’s rolled carbon steel flat products from FRESH GARLIC FROM THE PEOPLE’S Energy Prices & Taxes: Quarterly India. For ocean freight, we used the REPUBLIC OF CHINA Statistics (Third Quarter, 2003). We value provided by Linshu Dading from Maersk Sealand valued electricity based on data from Manufacturer/Exporter Weighted–average (www.maersksealand.com) in its percentage margin the International Energy Agency’s November 1, 2002, through April 30, Energy Prices & Taxes: Quarterly 2003, new shipper review and this Jinan Yipin Corporation, Statistics (First Quarter, 2003). We administrative review for the movement Ltd.36.75. valued water using the water tariff rate Jinxiang Dong Yun of containers from the PRC to the east reported on the Municipal Corporation Freezing Storage Co., and west coasts of the United States. We of Greater Mumbai’s Web site. See http:/ Ltd...... 101.51 used these quotes to calculate a /www.mcgm.gov.in/Stat%20&%20Fig/ Fook Huat Tong Kee surrogate freight rate for each coast. For Revenue.htm. Pte., Ltd...... 90.27 marine insurance, we relied on rate Huaiyang Hongda De- The respondents reported packing quotes from RJG Consultants hydrated Vegetable inputs consisting of plastic nets/mesh (www.rjgconsultants.com) dating from Company ...... 33.52 bags, paper cartons, plastic packing the POR for the movement of Linshu Dading Private bands, tape, wood used for producing refrigerated containers from the PRC to Agricultural Products pallets, nails used for producing pallets, Co., Ltd...... 58.26 the east and west coasts of the United Sunny Import & Export plastic jars, plastic jar lids, nitrogen gas, States. antiseptic, metal clips, bubble wrap, Limited ...... 27.24 As discussed in the FOP Taian Ziyang Food Co., labels, glue, and cardboard. All of these Memorandum, the respondents and the Ltd...... 61.43 inputs were valued using import data petitioners submitted the publicly Jining Trans–High Trad- from the World Trade Atlas that covered available financial information of six ing Co., Ltd...... 26.18 the POR. companies. We concluded that the Zhengzhou Harmoni For labor, consistent with 19 CFR financial information of Parry Agro Spice Co., Ltd...... 41.28 351.408(c)(3), we used the most recent Industries Limited (‘‘Parry Agro’’), a tea PRC–wide rate* ...... 376.67 PRC regression–based wage rate that producer in India, was most * Includes Jinxiang Hongyu Freezing and appears on the website for Import representative of the financial Storing Co., Ltd., Linyi Sanshan Import and Administration (http://ia.ita.doc.gov/ experiences of the respondent Export Trading Co., Ltd., and Tancheng Coun- wages/corrected00wages/ companies for which we applied the ty Dexing Foods Co., Ltd. corrected00wages.htm). The source of FOP methodology because it produced Case briefs or other written comments the wage–rate data for the Import and processed a product that was not in at least six copies must be submitted Administration’s Web site is the highly processed or preserved prior to to the Assistant Secretary for Import International Labor Organization’s its sale. Thus, to value factory overhead, Administration no later than 30 days Yearbook of Labour Statistics 2002 and selling, general and administrative after new factual information is (Geneva, 2002), chapter 5B: Wages in expenses we used rates based on data submitted for the record. Pursuant to 19 Manufacturing. taken from the 2003/2004 financial CFR 351.309(d)(2), rebuttal briefs are For land, we used the value published statements of Parry Agro. Parry Agro’s due no later than five days after the in the Punjab State Development Report. 2002/2003 and 2003/2004 financial submission of case briefs. A list of We valued cold storage using the statements did not report a profit. Thus, authorities used, a table of contents, and surrogate electricity value if the cold– for purposes of these preliminary results an executive summary of issues should storage facility was located at the we are applying the profit ratio that was accompany any briefs submitted to the production facility. If the respondent’s reported on its 2001/2002 financial Department. Executive summaries cold storage was located off–site, we statements. We also concluded that the should be limited to five pages total, used a value based on a rate from ‘‘Local financial information of Mahabaleshwar including footnotes. In accordance with traders to import generator fitted Honey Producers Co–Operative Society 19 CFR 351.310, we will hold a public

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hearing to afford interested parties an importer’s/customer’s entries during the DEPARTMENT OF COMMERCE opportunity to comment on arguments review period. raised in case or rebuttal briefs, With respect to sales for which International Trade Administration provided that such a hearing is entered values were not reported, for [A–485–806] requested by an interested party. these preliminary results, we divided Interested parties who wish to request a the total dumping margins for each Certain Hot–Rolled Carbon Steel Flat hearing, or to participate if one is exporter’s importer/customer by the Products from Romania: Preliminary requested, must submit a written total number of units the exporter sold Results of Antidumping Duty request to the Assistant Secretary for to that importer/customer. For Administrative Review Import Administration, U.S. Department assessment amounts calculated on this of Commerce, Room 1870, within 30 basis, we will direct CBP to assess the AGENCY: Import Administration, days after the date of publication of the resulting per–unit dollar amount against International Trade Administration, preliminary results of this review in the each unit of merchandise in each of that Department of Commerce. Federal Register. Requests should importer’s/customer’s entries during the SUMMARY: In response to a request by contain the following information: (1) review period. United States Steel Corporation, a The party’s name, address, and domestic interested party, the telephone number; (2) the number of Cash–Deposit Requirements Department of Commerce (the participants; and (3) a list of the issues The following cash–deposit Department) is conducting an to be discussed. Oral presentations will requirements will be effective upon administrative review of the be limited to issues raised in the briefs. publication of the final results of the antidumping duty order on certain hot– If we receive a request for a hearing, we administrative review for shipments of rolled carbon steel flat products (hot– plan to hold the hearing three days after the subject merchandise entered, or rolled steel) from Romania. The period the deadline for submission of the withdrawn from warehouse, for of review (POR) is November 1, 2002, rebuttal briefs at the U.S. Department of consumption on or after the publication through October 31, 2003. Commerce, 14th Street and Constitution date, as provided for by section We preliminarily find that sales have Avenue, NW, Washington, DC 20230. 751(a)(2)(C) of the Act: (1) for subject been made below normal value (NV). If these preliminary results are adopted in Extension of Time for the Final Results merchandise exported by the our final results of administrative of Administrative Review respondents, the cash–deposit rate will be that established in the final results of review, we will instruct U.S. Customs The issues in these preliminary review; (2) for all other PRC exporters of and Border Protection (CBP) to assess results of review present a number of subject merchandise which have not antidumping duties on the subject complex factual and legal questions been found to be entitled to a separate merchandise that was exported by Ispat pertaining to the Department’s methods rate, the cash–deposit rate will be the Sidex S.A. (Ispat Sidex) and its of calculating the antidumping duties in PRC–wide rate of 376.67 percent; (3) for subsidiary, Sidex Trading S.R.L. (Sidex this case. Therefore, it is not practicable all non–PRC exporters of subject Trading), and entered during the POR. to complete the review within the time merchandise, the cash–deposit rate will EFFECTIVE DATE: December 7, 2004. limits mandated by section 751(a)(3)(A) be the rate applicable to the PRC FOR FURTHER INFORMATION CONTACT: of the Act. Consequently, we are exporter that supplied that exporter. extending the time limit for the Charles Riggle at (202) 482–0650 or These deposit requirements, when David Layton at (202) 482–0371, AD/ completion of the final results of this imposed, shall remain in effect until review, including our analysis of issues CVD Operations, Office 8, Import publication of the final results of the Administration, International Trade raised in any case or rebuttal briefs, next administrative review. until May 30, 2005. See section Administration, U.S. Department of 751(a)(3) of the Act and 19 CFR Notification to Interested Parties Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. 351.213(h)(1). This notice also serves as a SUPPLEMENTARY INFORMATION: Assessment Rates preliminary reminder to importers of their responsibility under 19 CFR Background Upon completion of this 351.402(f) to file a certificate regarding administrative review, the Department the reimbursement of antidumping On November 29, 2001, the shall determine, and CBP shall assess, duties prior to liquidation of the Department published an antidumping antidumping duties on all appropriate relevant entries during the POR. Failure duty order on hot–rolled steel from entries. In accordance with 19 CFR to comply with this requirement could Romania. See Notice of Amended Final 351.212(b)(1), we have calculated, result in the Secretary’s presumption Determination of Sales at Less Than whenever possible, an exporter/ that reimbursement of antidumping Fair Value and Antidumping Duty importer (or customer)-specific duties occurred and the subsequent Order: Certain Hot–Rolled Carbon Steel assessment rate or value for assessment of double antidumping Flat Products From Romania, 66 FR merchandise subject to this review. duties. 59566 (November 29, 2001) (Amended With respect to CEP sales for which We are issuing and publishing these Determination and Order). On entered values were reported, for these preliminary results of review in November 3, 2003, the Department preliminary results we divided the total accordance with sections 751(a)(3) and published a notice of opportunity to dumping margins for the reviewed sales 777(i) of the Act and 19 CFR request an administrative review of this by the total entered value of those 351.213(d)(4). order. See Antidumping or reviewed sales for each applicable Countervailing Duty Order, Finding, or importer. For duty–assessment rates Dated: November 29, 2004. Suspended Investigation; Opportunity calculated on this basis, we will direct James J. Jochum, to Request Administrative Review, 68 the CBP to assess the resulting Assistant Secretary for Import FR 62279 (November 3, 2003). On percentage margin against the entered Administration. November 28, 2003, in accordance with customs values for the subject [FR Doc. E4–3477 Filed 12–6–04; 8:45 am] 19 CFR 351.213(b)(1), the petitioner merchandise on each of the applicable BILLING CODE 3510–DS–S requested a review of Ispat Sidex, a

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producer/exporter of hot–rolled steel ME Section A questionnaire that it made definitions in the Harmonized Tariff from Romania. no sales of subject merchandise during Schedule of the United States (HTSUS), On December 24, 2003, the the 10–month ME period. In a separate are products in which: (i) iron Department published a notice of February 23, 2004, submission, Ispat predominates, by weight, over each of initiation of administrative review of the Sidex provided documentation to the other contained elements; (ii) the antidumping duty order on hot–rolled support its claim that it sold no subject carbon content is 2 percent or less, by steel from Romania covering the period merchandise during the ME portion of weight; and (iii) none of the elements November 1, 2002, through October 31, the POR. The Department corroborated listed below exceeds the quantity, by 2003. See Initiation of Antidumping and this claim using exporter–specific CBP weight, respectively indicated: 1.80 Countervailing Duty Administrative import data. See Decision Memorandum percent of manganese, or 2.25 percent of Reviews, Request for Revocation in Part to Gary Taverman (March 9, 2004) silicon, or 1.00 percent of copper, or and Deferral of Administrative Review, available in the Department’s Central 0.50 percent of aluminum, or 1.25 68 FR 74550 (December 24, 2003). On Records Unit, room B099, of the main percent of chromium, or 0.30 percent of July 12, 2004, the Department published Commerce building (CRU). Therefore, in cobalt, or 0.40 percent of lead, or 1.25 a notice extending the deadline for the the section of this notice entitled percent of nickel, or 0.30 percent of issuance of the preliminary results by Preliminary Results of the Review, we tungsten, or 0.10 percent of 120 days until no later than November have calculated a weighted–average molybdenum, or 0.10 percent of 29, 2004. See Extension of the Time dumping margin reflecting the margin niobium, or 0.15 percent of vanadium, Limit for the Preliminary Results of we calculated for the NME portion of or 0.15 percent of zirconium. Antidumping Duty Administrative the POR because we found no sales of All products that meet the physical Review, 69 FR 41785 (July 12, 2004). We subject merchandise during the ME and chemical description provided are conducting this review under portion of the POR. This weighted– above are within the scope of the order Section 751(a) of the Tariff Act of 1930, average figure thus represents the unless otherwise excluded. The as amended (the Act). margin of dumping for the entire POR. following products, by way of example, The petitioner requested an Scope of the Order are outside or are specifically excluded administrative review of Ispat Sidex. from the scope: Sidex Trading is Ispat Sidex’s The products covered by the order are • Alloy hot–rolled steel products in subsidiary trading company. Ispat Sidex certain hot–rolled carbon steel flat which at least one of the chemical and Sidex Trading submitted a products of a rectangular shape, of a elements exceeds those listed above consolidated response for this review. width of 0.5 inch or greater, neither (including, e.g., American Society for We consider Sidex Trading to be part of clad, plated, nor coated with metal and Testing and Materials (ASTM) Ispat Sidex and are thus treating these whether or not painted, varnished, or specifications A543, A387, A514, A517, two companies as a single entity. See coated with plastics or other non– A506). Society of Automotive Engineers Memorandum to File: Treatment of Ispat metallic substances, in coils (whether or (SAE)/American Iron & Steel Institute Sidex S.A. and its subsidiary, Sidex not in successively superimposed (AISI) grades of series 2300 and higher. Trading S.R.L., as a single entity layers), regardless of thickness, and in • Ball bearing steels, as defined in the (November 29, 2004). straight length, of a thickness of less HTSUS. Romania’s designation as a non– than 4.75 mm and of a width measuring • Tool steels, as defined in the market-economy (NME) country at least 10 times the thickness. HTSUS. remained in effect until January 1, 2003.1 Universal mill plate (i.e., flat–rolled • Silico–manganese (as defined in the Since the first two months of the POR products rolled on four faces or in a HTSUS) or silicon electrical steel with fell before Romania’s graduation to closed box pass, of a width exceeding a silicon level exceeding 2.25 percent. market–economy status and the last ten 150 mm, but not exceeding 1250 mm, • ASTM specifications A710 and months of this POR came after its and of a thickness of not less than 4.0 A736. graduation, in its antidumping mm, not in coils and without patterns • USS abrasion–resistant steels (USS questionnaire to Ispat Sidex, dated in relief) of a thickness not less than 4.0 AR 400, USS AR 500). January 26, 2004, the Department mm is not included within the scope of • All products (proprietary or determined that it would treat Romania this order. otherwise) based on an alloy ASTM as an NME country from November 1, Specifically included within the specification (sample specifications: 2002, through December 31, 2002, and scope are vacuum degassed, fully ASTM A506, A507). a market–economy (ME) country from stabilized steels (commonly referred to • Non–rectangular shapes, not in January 1, 2003, through October 31, as interstitial–free (IF) steels), high coils, which are the result of having 2003. Ispat Sidex stated in its February strength low alloy (HSLA) steels, and been processed by cutting or stamping 23, 2004, response to the Department’s the substrate for motor lamination and which have assumed the character steels. IF steels are recognized as low of articles or products classified outside 1 In Certain Small Diameter Carbon and Alloy carbon steels with micro–alloying levels chapter 72 of the HTSUS. Seamless Standard, Line, and Pressure Pipe from of elements such as titanium or niobium The merchandise subject to this order Romania: Final Results of Antidumping Duty (also commonly referred to as is classified in the HTSUS at the Administrative Review, 68 FR 12672, 12673 (March 17, 2003), the Department reviewed the non-market- columbium), or both, added to stabilize following subheadings: 7208.10.15.00, economy status of Romania and determined to carbon and nitrogen elements. HSLA 7208.10.30.00, 7208.10.60.00, reclassify Romania as a market economy for steels are recognized as steels with 7208.25.30.00, 7208.25.60.00, purposes of antidumping and countervailing duty micro–alloying levels of elements such 7208.26.00.30, 7208.26.00.60, proceedings, pursuant to section 771(18)(A) of the Act, effective January 1, 2003. See Memorandum as chromium, copper, niobium, 7208.27.00.30, 7208.27.00.60, from Lawrence Norton, Import Policy Analyst, to vanadium, and molybdenum. The 7208.36.00.30, 7208.36.00.60, Joseph Spetrini, Acting Assistant Secretary for substrate for motor lamination steels 7208.37.00.30, 7208.37.00.60, Import Administration: Antidumping Duty contains micro–alloying levels of 7208.38.00.15, 7208.38.00.30, Administrative Review of Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and elements such as silicon and aluminum. 7208.38.00.90, 7208.39.00.15, Pressure Pipe from Romania-Non-Market Economy Steel products to be included in the 7208.39.00.30, 7208.39.00.90, Status Review (March 10, 2003). scope of this order, regardless of 7208.40.60.30, 7208.40.60.60,

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7208.53.00.00, 7208.54.00.00, of government control over export We analyzed these laws and found that 7208.90.00.00, 7211.14.00.90, activities includes the following: 1) an they establish the absence of de jure 7211.19.15.00, 7211.19.20.00, absence of restrictive stipulations control during the POR. These 7211.19.30.00, 7211.19.45.00, associated with the individual Romanian laws provide Ispat Sidex with 7211.19.60.00, 7211.19.75.30, exporter’s business and export licenses; the right to establish business 7211.19.75.60, and 7211.19.75.90. 2) any legislative enactments organizations for the purpose of Certain hot–rolled carbon steel flat decentralizing control of companies; conducting any lawful commercial products covered by this order, and 3) any other formal measures by the activity, including the export of subject including: vacuum degassed fully government decentralizing control of merchandise, provided that the stabilized; high strength low alloy; and companies. De facto absence of company registers with the government. the substrate for motor lamination steel government control over exports is The activities of Ispat Sidex are limited may also enter under the following tariff based on four factors: 1) Whether each only by its own articles of incorporation numbers: 7225.11.00.00, 7225.19.00.00, exporter sets its own export prices and by–laws, which establish the scope 7225.30.30.50, 7225.30.70.00, independently of the government and of Ispat Sidex’s business activities. Ispat 7225.40.70.00, 7225.99.00.90, without the approval of a government Sidex’s by–laws allow the company to 7226.11.10.00, 7226.11.90.30, authority; 2) whether each exporter engage in a broad range of activities 7226.11.90.60, 7226.19.10.00, retains the proceeds from its sales and related to the sale of hot–rolled steel, 7226.19.90.00, 7226.91.50.00, makes independent decisions regarding including exporting. There are no 7226.91.70.00, 7226.91.80.00, and the disposition of profits or the business or export licenses required or 7226.99.00.00. Subject merchandise financing of losses; 3) whether each granted by the government, and the may also enter under 7210.70.30.00, exporter has the authority to negotiate company’s business license does not 7210.90.90.00, 7211.14.00.30, and sign contracts and other indicate the existence of any special 7212.40.10.00, 7212.40.50.00, and agreements; and 4) whether each entitlements. See pages A–NME–8 to A– 7212.50.00.00. exporter has autonomy from the NME–9 of Ispat Sidex’s February 23, Although the HTSUS subheadings are government regarding the selection of 2004, submission. provided for convenience and customs management. See Silicon Carbide, 59 FR With respect to de facto control, purposes, our written description of the at 22587, and Sparklers, 56 FR at 20589. according to its questionnaire response, merchandise subject to this scope is We have determined, according to the the management of Ispat Sidex controls dispositive. criteria identified in Sparklers and Silicon Carbide, that evidence on the Ispat Sidex, making all decisions Separate Rates record demonstrates an absence of concerning budget, sales and pricing A designation of a country as an NME government control, both in law and in subject to review by the company’s remains in effect until it is revoked by fact, with respect to exports by Ispat ‘‘council of administration’’ (Ispat the Department. See section Sidex and Sidex Trading. Sidex’s board of directors). Sidex 771(18)(C)(i) of the Act. As stated above, With respect to de jure control, Ispat Trading is a subsidiary of Ispat Sidex since Romania was classified as an NME Sidex is part of the LNM Group, a and is controlled by its president who country until January 1, 2003, we are private joint–stock company organized is appointed by the Ispat Sidex council treating Romania as an NME country for under the Romanian Commercial of administration. Ispat Sidex has the first two months of the POR, from Companies Law No. 31/1990, as indicated that neither it nor Sidex November 1, 2002, through December amended. Ispat Sidex was privatized on Trading has any relationship with 31, 2002. November 16, 2001, when LNM national, provincial, or local It is the Department’s standard policy Holdings N.V. finalized its purchase of governments, including ministries or to assign all exporters of subject the majority share capital of Ispat Sidex. offices of those governments. Ispat merchandise subject to review in an During the POR, Ispat Sidex was Sidex reported the following: 1) It sets NME country a single rate unless an publicly traded on the Romanian stock prices for merchandise sold to the exporter can demonstrate an absence of exchange. Ispat Sidex has provided the United States based on negotiations government control, both in law and in Department with a list of its major with customers and these prices are not fact, with respect to exports. To stockholders that, in addition to LNM subject to review by any government establish whether an exporter is Holdings N.V., includes Moldova organization; 2) it does not coordinate sufficiently independent of government Financial Investments Company and with other exporters or producers to set control to be entitled to a separate rate, several individual shareholders with the price or determine to which market the Department analyzes the exporter in holdings of less than one percent of companies sell subject merchandise; 3) light of the criteria established in the Ispat Sidex’s total shares. Sidex Trading the export sales manager of Sidex Final Determination of Sales at Less is a limited–liability trading company Trading and Ispat Sidex’s export Than Fair Value: Sparklers from the organized under the Romanian manager have the authority to make People’s Republic of China, 56 FR 20588 Commercial Companies Law, Law No. export sales; 4) during its two–year term (May 6, 1991) (Sparklers), as amplified 31/1990, as amended. the Ispat Sidex council of in Final Determination of Sales at Less Ispat Sidex has placed on the record administration approves the hiring of Than Fair Value: Silicon Carbide from documents to demonstrate the absence key officials, approves the disposition of the People’s Republic of China, 59 FR of de jure control including its list of assets over a certain level, and proposes 22585 (May 2, 1994) (Silicon Carbide). shareholders, business license the general budget; 5) the general Under this test, exporters in NME (‘‘Certificat de Inregistrare’’), and assembly of shareholders elects the countries are entitled to separate, translations of relevant Romanian general director of Ispat Sidex, who in company–specific margins when they commercial laws, including the turn appoints the executive directors can demonstrate an absence of Romanian Commercial Companies Law, from the ranks of Ispat Sidex employees; government control over exports, both Law No. 31/1990, the Trade Registry 6) Ispat Sidex’s executive directors have in law (de jure) and in fact (de facto). Law, Law No. 26/1990, and various broad management responsibilities Evidence supporting, though not government ordinances related to the which include the approval and requiring, a finding of de jure absence company’s privatization and tax status. execution of contracts, payments to

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suppliers, and other normal business Normal Value countries maintain broadly available, operations; 7) Ispat Sidex and Sidex As discussed above, the Department is non–industry-specific export subsidies Trading control how their export treating Romania as an NME country for and that the existence of these subsidies revenues are used without restrictions the period November 1, 2002, through provides sufficient reason to believe or from outside the companies; 8) Ispat December 31, 2002. Section 773(c)(1) of suspect that export prices from these Sidex and Sidex Trading hold the bank the Act provides that, in the case of an countries are distorted. See Final accounts in which their export revenues NME, the Department shall determine Determination of Sales at Less Than are deposited in their respective names; NV using a factors–of-production Fair Value: Certain Automotive 9) Ispat Sidex’s council of methodology if the merchandise is Replacement Glass Windshields From administration and Sidex Trading’s exported from an NME and the the People’s Republic of China, 69 FR president have access to their respective information does not permit the 61790 (October 21, 2004) as discussed export revenue accounts; 10) Ispat Sidex calculation of NV using home–market in accompanying Issues and Decision and Sidex Trading calculate their profits prices, third–country prices, or Memorandum at Comment 5. Our in accordance with international constructed value under section 773(a) practice of excluding subsidized prices accounting standards and do not report of the Act. Because information on the has been upheld in China National export profits separately in their record does not permit the calculation Machinery Import and Export respective accounting records; 11) the of NV using home–market prices, third– Corporation v. United States and the Timken Company, 293 F. Supp. 2d 1334 Ispat Sidex general assembly of country prices, or constructed value, we (CIT 2003), aff’d, 104 Fed. Appx. 183 shareholders meets annually to review calculated NV based on a factors–of- (Fed. Cir. 2004). the previous year’s results and vote on production methodology in accordance the following year’s budget; 12) Ispat with sections 773(c)(3) and (4) of the Material Inputs and Surrogate Values Sidex and Sidex Trading can deposit Act and 19 CFR 351.408(c). To the extent non–aberrational and their foreign currency earnings from Because we are using surrogate contemporaneous data were available, sales of subject merchandise freely in country factors–of-production prices to we valued material inputs and packing their respective accounts and there are determine NV, section 773(c)(4) of the material using imports statistics from no requirements that the two companies Act requires that we use values from a the Egyptian import statistical data for sell any of their foreign currency market–economy (surrogate) country 2002 from the Egyptian Central Agency earnings to the Romanian government. that is at a level of economic for Public Mobilization and Statistics Therefore, based on the information development comparable to that of (CAPMAS), the Egyptian government’s provided, we preliminarily determine Romania and is a significant producer of official statistical agency. For certain that there was an absence of de facto comparable merchandise. We have material inputs and packing material, government control over the export determined that the Philippines, we used import data for 2002 from UN functions of Ispat Sidex and Sidex Ecuador, Egypt, Algeria, El Salvador, Commodity Trade Statistics for 2002 Trading. and the Dominican Republic are (U.N. Comtrade) or the World Trade market–economy countries at a Atlas (WTA). Where a material input Export Price comparable level of economic was purchased in a market–economy development to that of Romania. See Because Ispat Sidex sold the subject currency from a market–economy March 10, 2004, memorandum from Ron supplier, we valued all of the input at merchandise through its subsidiary, Lorentzen to Gary Taverman which is Sidex Trading, to unaffiliated the actual purchase price in accordance available in the CRU. In addition, we with 19 CFR 351.408(c)(1). Consistent purchasers in the United States prior to have found that Egypt is a significant with Certain Cut–to-Length Carbon Steel importation into the United States and producer of comparable merchandise, Plate From Romania: Preliminary constructed export price methodology is i.e., hot–rolled steel. See Memorandum Results of the Antidumping Duty not otherwise indicated, we have used to File from Paul Stolz, dated November Administrative Review and Notice of export price in accordance with section 29, 2004, which is on file in the CRU. Intent To Rescind in Part, 69 FR 54108 772(a) of the Act. We have chosen Egypt as the primary (September 7, 2004), to value limestone We calculated export price based on surrogate country. Pursuant to 19 CFR we used Filipino import statistics for the price to unaffiliated purchasers. 351.408(c)(2), we selected, where 2001 from the WTA. For a complete From this price, we deducted amounts possible, publicly available values from analysis of surrogate values, see the for foreign inland freight and foreign Egypt which were average non–export November 29, 2004, memorandum, brokerage and handling, pursuant to values, representative of a range of Factors of Production Valuation for section 772(c)(2)(A) of the Act. We prices within the POR or most Preliminary Results (Valuation valued these deductions using surrogate contemporaneous with the POR, Memorandum), available in the CRU. values. We selected Egypt as the product–specific, and tax–exclusive. To value electricity we used the 2001 primary surrogate country for the Where we did not have reliable electricity rates for Egypt reported on reasons explained in the ‘‘Normal Egyptian values we used values for the website of the International Trade Value’’ section of this notice. For the inputs from the Philippines, which also Administration under ‘‘Trade deductions of foreign inland freight and produces comparable products to the Information Center.’’ See foreign brokerage and handling, we used subject merchandise. Because some of www.web.ita.doc.gov/ticwebsite/ Egyptian surrogate values because these the data were not contemporaneous neweb.nsf/. We based the value of services were provided by Romanian with the POR, we adjusted the data to natural gas on publically available companies and paid in Romanian lei. the POR using the wholesale price index Egyptian pricing data from an article For certain U.S. sales for which it was (WPI) published by the International dated July 18, 2002, published at appropriate, we also deducted Monetary Fund. Also, where we have http://www.rigzone.com/news/ international freight, U.S. brokerage and relied upon import values, we have article.asp?a_id=3846. These data handling and U.S. customs duties excluded imports from South Korea, reflect market prices for natural gas in pursuant to section 772(c)(2)(A) of the Thailand, and Indonesia. The Egypt and were used in our most recent Act. Department has found that these final results for seamless steel pipe from

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Romania. See Certain Small Diameter derived AISC non–depreciation submit case briefs or rebuttal briefs in Carbon and Alloy Seamless Standard, overhead value to AISC’s reported this review are requested to submit with Line, and Pressure Pipe from Romania: depreciation expense to obtain a value each argument (1) a statement of the Final Results of Antidumping for total factory overhead. We subtracted issue, (2) a brief summary of the Administrative Review, 68 FR 54418 this factory overhead amount from argument, and (3) a table of authorities. (September 17, 2003), and AISC’s cost of goods sold to obtain a Parties are also requested to submit such corresponding Issues and Decisions value for total material, labor, and arguments, and public versions thereof, Memorandum at Comment 2. We energy expenses, and then we divided with an electronic version on a diskette. adjusted the value for natural gas for the total factory overhead by total Duty Absorption inflation. For injected coal powder, we material, labor, and energy expenses to used Egyptian import data from calculate the factory overhead ratio we On January 23, 2004, United States CAPMAS for 2002. used in our calculation of normal value. Steel Corporation requested that the For labor, we used the Romanian To value truck freight rates, we used Department determine whether regression–based wage rate at Import a 1999 rate (adjusted for inflation) antidumping duties had been absorbed Administration’s home page, Import provided by a trucking company located during the POR. Section 751(a)(4) of the Library, Expected Wages of Selected in Egypt. For rail transportation, we Act provides that, if requested, the NME Countries, revised in September used rail rates in Egypt, information also Department will determine during an 2003. See www.ia.ita.doc.gov/wages/ used in Titanium Sponge from the administrative review initiated two or index.html. Because of the variability of Republic of Kazakhstan: Notice of Final four years after the publication of the wage rates in countries with similar Results of Antidumping Duty order whether antidumping duties have per–capita gross domestic products, Administrative Review, 64 FR 66169 been absorbed by a foreign producer or section 351.408(c)(3) of the (November 24, 1999), which we exporter if the subject merchandise is Department’s regulations requires the obtained from a 1999 letter from the sold in the United States through an use of a regression–based wage rate. The Egyptian International House. We affiliated importer. In this case, Ispat source of these wage–rate data on the adjusted these rail rates for inflation. Sidex sold to the United States through Import Administration’s web site is the For barge transportation, we valued an importer that is affiliated within the Year Book of Labour Statistics 2002, barge rates using an average of Egyptian meaning of section 771(33) of the Act. International Labour Office (Geneva: rates from an Egyptian freight forwarder Because this review was initiated two 2002), Chapter 5B: Wages in for steel coil and coal in bulk from years after the publication of the Manufacturing. Alexandria to Hulwan, Egypt, as antidumping duty order, we will make We valued by–products using adjusted for inflation. a duty–absorption determination in this Egyptian import data for 2002 from For brokerage and handling, we used segment of the proceeding. Accordingly, CAPMAS and import data from U.N. a 1999 rate (adjusted for inflation) we have requested that Ispat Sidex Comtrade. provided by a trucking and shipping provide information on duty absorption We based our calculation of company located in Alexandria, Egypt. by December 6, 2004. Based on Ispat depreciation, selling, general and For additional analysis regarding the Sidex’s response, we will make a administrative (SG&A) expenses, and surrogate values we have applied, see preliminary determination on duty profit from the financial statements of the Valuation Memorandum available in absorption and provide parties with an Alexandria National Iron and Steel the CRU. opportunity to comment prior to the Works Company (AISC), an Egyptian completion of the final results of this producer of products identical to the Preliminary Results of the Review review. subject merchandise. We were unable to We preliminarily determine that the Assessment calculate a specific non–depreciation following dumping margin exists for the The Department shall determine, and overhead based on the AISC financial period November 1, 2002, through CBP shall assess, antidumping duties on statements because the statements did October 31, 2003: not itemize expenses associated with all appropriate entries. In accordance non–depreciation overhead. Therefore, Weighted–average with 19 CFR 351.212(b)(1), we have to estimate AISC’s amount of non– Exporter/manufacturer margin percentage calculated, whenever possible, an depreciation overhead expense, we have exporter/importer (or customer)-specific calculated a company–specific non– Ispat Sidex ...... 33.47 assessment rate or value for depreciation overhead rate (non– merchandise subject to this review. depreciation overhead amounts/cost of Within five days of the date of Ispat Sidex reported all of its sales sales) from the financial statements of publication of this notice, in accordance during the POR as export–price sales. Ispat Annaba SPA, an Algerian producer with 19 CFR 351.224, the Department Ispat Sidex provided entered values for of products identical to the subject will disclose its calculations. Any only a portion of these reported sales. merchandise. We selected the non– interested party may request a hearing With respect to export–price sales for depreciation overhead rate from the within 30 days of the date of publication which entered values were reported, for Algerian company because it was the of this notice. Any hearing, if requested, these preliminary results we divided the best available information on the record will be held approximately 37 days after total dumping margins for the reviewed for the preliminary results. We will the publication of this notice. Issues sales by the total entered value of those consider alternative surrogate non– raised in hearings will be limited to reviewed sales for each applicable depreciation overhead rates for the final those raised in the case and rebuttal importer. See 19 CFR 351.212(b). For results of this review. briefs. Interested parties may submit duty–assessment rates calculated on this For these preliminary results, we case briefs within 30 days of the date of basis, we will direct the CBP to assess multiplied AISC’s total cost of goods publication of this notice. Rebuttal the resulting percentage margin against sold by the non–depreciation overhead briefs, which must be limited to issues the entered customs values for the rate from Ispat Annaba (5.02 percent) to raised in the case briefs, may be filed subject merchandise on each of the derive a value for AISC’s non– not later than 35 days after the date of applicable importer’s/customer’s entries depreciation overhead. We added the publication of this notice. Parties who during the review period.

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With respect to export–price sales for DEPARTMENT OF COMMERCE Dated: November 30, 2004. which entered values were not reported, James J. Jochum, for these preliminary results we divided International Trade Administration Assistant Secretary for Import the total dumping margins for each Administration. exporter’s importer/customer by the [A–570–504] [FR Doc. E4–3479 Filed 12–6–04; 8:45 am] total number of units the exporter sold BILLING CODE 3510–DS–P to that importer/customer. For Petroleum Wax Candles From the assessment amounts calculated on this People’s Republic of China; Extension basis, we will direct CBP to assess the of Final Results of Expedited Sunset DEPARTMENT OF COMMERCE Review of Antidumping Duty Order resulting per–unit dollar amount against International Trade Administration each unit of merchandise in each of that AGENCY: Import Administration, [A–122–814] importer’s/customer’s entries during the International Trade Administration, review period. Department of Commerce. Pure Magnesium From Canada; Notice SUMMARY: Cash Deposit Requirements The Department of Commerce of NAFTA Binational Panel’s Final (‘‘the Department’’) is extending the Decision, Amended Final Results of The following cash deposit rates will time limit for its final results in the Full Sunset Review and Revocation of be effective upon publication of the sunset review of the antidumping duty Antidumping Duty Order final results for all shipments of hot– order on petroleum wax candles from AGENCY: Import Administration, rolled steel from Romania entered, or the People’s Republic of China. Based International Trade Administration, withdrawn from warehouse, for on adequate responses from the Department of Commerce. consumption on or after the publication domestic interested parties and an SUMMARY: On November 19, 2004, the date, as provided for by section inadequate response from respondent NAFTA Secretariat published in the 751(a)(1) of the Act: (1) for Ispat Sidex, interested parties, the Department is conducting an expedited sunset review Federal Register a notice of completion which has a separate rate, the cash to determine whether revocation of the of panel review of the final remand deposit rate will be the company– antidumping order would lead to the redetermination made by the U.S. specific rate established in the final continuation or recurrence of dumping. Department of Commerce concerning results of review; (2) for all other As a result of this extension, the the full sunset review of the Romanian exporters, the cash deposit Department intends to issue final results antidumping duty order on pure rate will be the Romania–wide rate, of this expedited sunset review on or magnesium from Canada. See North 88.62 percent, from the Amended about December 10, 2004. American Free-Trade Agreement, Determination and Order; (3) for non– Article 1904 NAFTA Panel Reviews; EFFECTIVE DATES: December 7, 2004. Romanian exporters of subject Completion of Panel Review, 69 FR merchandise from Romania, the cash FOR FURTHER INFORMATION CONTACT: 67703 (November 19, 2004). As there is deposit rate will be the rate applicable Hilary E. Sadler, Esq., Import now a final and conclusive decision in to the Romanian supplier of that Administration, International Trade this case, we are amending the final exporter. These deposit rates, when Administration, U.S. Department of results of the full sunset review and Commerce, 14th Street & Constitution imposed, shall remain in effect until revoking the antidumping duty order on Avenue, NW., Washington, DC 20230; publication of the final results of the pure magnesium from Canada. telephone: (202) 482–4340. next administrative review. EFFECTIVE DATE: August 1, 2000. Extension of Final Results: In FOR FURTHER INFORMATION CONTACT: This notice also serves as a accordance with section 751(c)(5)(B), Martha V. Douthit, Office of Policy, preliminary reminder to importers of the Department may extend the period Import Administration, International their responsibility under 19 CFR of time for making its determination by Trade Administration, U.S. Department 351.402(f) to file a certificate regarding not more than 90 days, if it determines of Commerce, 14th Street and the reimbursement of antidumping that the review is extraordinarily Constitution Ave., NW., Washington, duties prior to liquidation of the complicated. As set forth in DC 20230; telephone: (202) 482–5050. 751(c)(5)(C)(v) of the Tariff Act of 1930, relevant entries during this review SUPPLEMENTARY INFORMATION: period. Failure to comply with this as amended (‘‘the Act’’), the Department requirement could result in the may treat a sunset review as Scope of the Order Secretary’s presumption that extraordinarily complicated if it is a The product covered by this order is reimbursement of antidumping duties review of a transition order, as is the pure magnesium. Pure unwrought occurred and the subsequent assessment case in this proceeding. Therefore, the magnesium contains at least 99.8 of double antidumping duties. Department has determined, pursuant to percent magnesium by weight and is section 751(c)(5)(C)(v) of the Act, that This determination is issued and sold in various slab and ingot forms and the second sunset review of the sizes. Granular and secondary published in accordance with sections antidumping duty order on petroleum magnesium are excluded from the scope 751(a)(1) and 777(i)(1) of the Act. wax candles from the People’s Republic of this order. Pure magnesium is Dated: November 29, 2004. of China is extraordinarily complicated currently classified under subheading James J. Jochum, and requires additional time to 8104.11.0000 of the Harmonized Tariff complete its analysis. The Department’s Assistant Secretary for Import Schedule (‘‘HTS’’). The HTS item Administration. final results of review in this case were number is provided for convenience and scheduled for November 30, 2004. The [FR Doc. E4–3526 Filed 12–6–04; 8:45 am] for customs purposes. The written Department will extend the deadline in description remains dispositive. BILLING CODE 3510–DS–S this proceeding and, as a result, intends to issue the final results on or about Background December 10, 2004 in accordance with On August 2, 1999, the Department of section 751(c)(5)(B). Commerce (‘‘the Department’’) initiated

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a sunset review of the antidumping duty CDA–00–1904–07 (Oct. 15, 2002), at 3, The Panel subsequently amended its order on pure magnesium from Canada (‘‘Second Remand Order’’). In the order to require the Department to take pursuant to section 751(c) of the Tariff Second Remand Order, the Panel action not inconsistent with its decision Act of 1930, as amended (‘‘the Act’’). ordered the Department: (1) To consider within 15 days. Order of the Panel (June See Five-Year (‘‘Sunset’’) Reviews, 64 FR other factors, such as the exchange rate, 24, 2003). The Department issued notice 41915 (August 2, 1999). On the basis of market share, below cost sales, and zero that the panel decisions were not in a notice of intent to participate filed on margins, in its determination of harmony with the Department’s original behalf of domestic interested parties and likelihood of dumping; (2) to reconsider determination and continued adequate substantive comments filed on the normal preference for reporting the suspension of liquidation of the subject behalf of domestic and respondent investigation rate; and (3) to determine merchandise, pending any ECC interested parties, the Department whether it was an appropriate case in proceedings. Pure Magnesium from conducted a full sunset review. As a which to supplement the record. Second Canada: NAFTA Panel Decision, 68 FR result of this review, on July 5, 2000, the Remand Order at 11–12. The Panel 42004 (July 16, 2003). The Panel entered Department, pursuant to sections 751(c) concluded that the parties had waived a Notice of Final Panel Action on and 752 of the Act, determined that the right to raise the issue, for which August 25, 2003. revocation of the antidumping duty they wanted to supplement the record, On September 24, 2003, pursuant to order on pure magnesium from Canada because the issue had not been raised Article 1904.13 and Annex 1904.13 of is likely to lead to continuation or before; nevertheless, the Panel the NAFTA, and Rules 37 through 39 of recurrence of dumping. See Pure instructed the Department to obtain the the Rules of Procedure for Article 1904 Magnesium From Canada; Final Results views of the parties and make a Extraordinary Challenge Committees of Full Sunset Review, 65 FR 41436 (July determination on reopening the record (‘‘ECC’’), the Government of the United 5, 2000). Subsequent to the for this additional information. States timely requested formation of an Department’s Final Results, respondents Id. at 10–12. On January 28, 2003, the ECC to review issues raised by the filed a complaint before the NAFTA Department filed its second Panel’s decisions. On October 5, 2004, Panel challenging these results. On redetermination on remand with the the ECC found that the Panel manifestly October 23, 2002, Norsk Hydro Canada, NAFTA Secretariat (‘‘Second Remand’’). exceeded its powers by failing to apply Inc. (‘‘NHCI’’) requested that the The Department decided that the other the correct standard of review and that Department continue the suspension of factors set forth by the parties were such action materially affected the liquidation for subject entries made on insufficient to warrant a negative Panel’s decision; however, it also found or after the effective date of the sunset likelihood determination, and it also that the Panel’s action did not threaten review, pursuant to 516A(g)(5)(C) of the determined it properly reported the the integrity of the binational panel Act. The Department granted this investigation rate. Second Remand at 7– review process, and affirmed the Panel’s request on January 28, 2003, and 14, 15–16. The Department obtained the decision. Pure Magnesium from suspended liquidation effective August views of the parties and decided, based Canada, Decision and Order of the 1, 2000. See Letter from John on 19 CFR 351.218(d)(4), not to reopen Extraordinary Challenge Committee, No. Brinkmann to Gregory S. McCue the record. Id. at 6. ECC–2003–1904–01USA (October 5, (January 28, 2003). 2004) at 11. On March 27, 2002, the NAFTA Panel On April 28, 2003, the NAFTA Panel issued an Order and Opinion. See Pure remanded an affirmative determination On November 19, 2004, the NAFTA Magnesium from Canada, Secretariat by the Department with instructions to Secretariat published in the Federal File No. USA–CDA–00–1904–06, (‘‘First revoke the antidumping order on pure Register its Notice of Completion of Remand Order’’). In the First Remand magnesium from Canada. Pure Panel Review of the final remand Order, the Panel instructed the Magnesium from Canada, Decision of determination made by the U.S. Department to reconsider (1) the claim the Panel Concerning the Results of the International Trade Administration. See that ‘‘good cause’’ existed to consider Second Redetermination by the North American Free-Trade Agreement, ‘‘other price, cost market, or economic Department of Commerce, USA–CDA– Article 1904 NAFTA Panel Reviews; factors’’ in determining the likelihood 00–1904–06 (April 28, 2003) (‘‘Third Completion of Panel Review, 69 FR that dumping would continue or recur; Panel Order’’). In its third decision, the 67703 (November 19, 2004). Therefore, and (2) its decision to report the Panel, disregarding its previous because there is a final Panel decision investigation rate as the margin of conclusion that the issue had been in this case, the Department is dumping likely to prevail if the order waived, rejected the Department’s amending the final sunset review and were revoked. Id. at 34. The Department application of the deadline in 19 CFR revoking the antidumping duty order on responded to the First Remand Order on 351.218(d)(4), even though the Panel pure magnesium from Canada. did not find that the Department acted May 28, 2002, when the Department Effective Date of Revocation released final results of determination inconsistently with the rule. Third pursuant to NAFTA Panel remand of the Panel Order, at 5. The Panel reviewed The Department is revoking the sunset review of the antidumping duty the Department’s likelihood antidumping duty order on pure order on pure magnesium from Canada determination at length, evaluating the magnesium from Canada effective (‘‘First Remand’’). Department’s factual conclusions in August 1, 2000, the effective date of the On October 15, 2002, the NAFTA light of six findings of fact extrapolated original full sunset review, pursuant to Panel issued its second remand by the Panel. Third Panel Order at 12– 516A(g)(5)(C). redetermination in the Canadian 20. Based on its own factual findings Pursuant to sections 751(d)(3) and magnesium antidumping order sunset and the non-record evidence that one 751(d)(2) of the Act, and 19 CFR case, remanding to the Department its company, NHCI, had switched its 351.222(i)(2)(ii), the Department will redetermination in the First Remand. production focus from pure to alloy instruct Customs and Border Protection See Decision of the Panel Concerning magnesium, the Panel concluded to terminate the suspension of the Remand Determination by the dumping would not recur if the order liquidation of the merchandise subject Department of Commerce, Pure were revoked. to this order entered, or withdrawn from Magnesium From Canada, File USA– Id. at 20–21. warehouse, on or after August 1, 2000

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and liquidate without regard to U.S. Department of Commerce, 14th On June 7, 2004, BGH requested that antidumping duties. Street and Constitution Avenue, NW., it be relieved from the requirement to This notice also serves as the only Washington, DC 20230; telephone: (202) report affiliated party resales because reminder to parties subject to 482–1276. sales of the foreign like product to administrative protective order (‘‘APO’’) SUPPLEMENTARY INFORMATION: affiliated parties during the POR of their responsibility concerning the constituted less than five percent of disposition of proprietary information Background total sales of the foreign like product. disclosed under APO in accordance On March 7, 2002, the Department of On June 16, 2004, we granted BGH’s with 19 CFR 351.305 of the Commerce (‘‘the Department’’) request in accordance with 19 CFR Department’s regulations. Timely published an antidumping duty order 351.403(d). See Memorandum to Susan notification of return/destruction of on stainless steel bar from Germany. See Kuhbach, ‘‘Reporting of BGH’s Home APO materials or conversion to judicial Notice of Amended Final Determination Market Sales by an Affiliated Party,’’ protective order is hereby requested. of Sales at Less Than Fair Value and dated June 16, 2004, which is in the Failure to comply with the regulations Antidumping Duty Order: Stainless Department’s Central Records Unit, and the terms of an APO is a Steel Bar from Germany, 67 FR 10382 located in Room B–099 of the main sanctionable violation. (March 7, 2002). On October 10, 2003, Department building (‘‘CRU’’). This five-year (‘‘sunset’’) review and the Department published an amended notice are in accordance with sections antidumping duty order on stainless Scope of the Order 751(c), 752, and 777(i)(1) of the Act. steel bar from Germany. See Notice of For the purposes of this order, the Dated: December 1, 2004. Amended Antidumping Duty Orders: term ‘‘stainless steel bar’’ includes Stainless Steel Bar from France, articles of stainless steel in straight Joseph A. Spetrini, Germany, Italy, Korea, and the United Acting Assistant Secretary for Import lengths that have been either hot-rolled, Kingdom, 68 FR 58660 (October 10, forged, turned, cold-drawn, cold-rolled Administration. 2003). On June 14, 2004, the Department [FR Doc. E4–3528 Filed 12–6–04; 8:45 am] or otherwise cold-finished, or ground, published the final results of the first having a uniform solid cross section BILLING CODE 3510–DS–P administrative review of the along their whole length in the shape of antidumping duty order on stainless circles, segments of circles, ovals, steel bar from Germany. See Notice of DEPARTMENT OF COMMERCE rectangles (including squares), triangles, Final Results of Administrative Review: hexagons, octagons, or other convex International Trade Administration Stainless Steel Bar from Germany, 69 FR polygons. Stainless steel bar includes 32982 (June 14, 2004) (‘‘SSBar First cold-finished stainless steel bars that are [A–428–830] Review’’). turned or ground in straight lengths, On March 1, 2004, the Department whether produced from hot-rolled bar or Stainless Steel Bar From Germany: published its Antidumping or Preliminary Results of Antidumping from straightened and cut rod or wire, Countervailing Duty Order, Finding, or and reinforcing bars that have Duty Administrative Review Suspended Investigation; Opportunity indentations, ribs, grooves, or other to Request Administrative Review, 69 AGENCY: Import Administration, deformations produced during the FR 9584 (March 1, 2004). On March 30, International Trade Administration, rolling process. Department of Commerce. in accordance with 19 CFR 351.213(b), the Department received a timely Except as specified above, the term SUMMARY: The Department of Commerce request for review from BGH Edelstahl does not include stainless steel semi- is conducting an administrative review Freital GmbH, BGH Edelstahl finished products, cut length flat-rolled of the antidumping duty order on Lippendorf GmbH, BGH Edelstahl products (i.e., cut length rolled products stainless steel bar from Germany. The Lugau GmbH, and BGH Edelstahl Siegen which if less than 4.75 mm in thickness period of review is March 1, 2003, GmbH (collectively ‘‘BGH’’), four have a width measuring at least 10 times through February 29, 2004. This review affiliated German producers of the the thickness, or if 4.75 mm or more in covers imports of stainless steel bar subject merchandise. On March 31, thickness having a width which exceeds from one producer/exporter. Carpenter Technology Corp., Crucible 150 mm and measures at least twice the We have preliminarily found that Specialty Metals Division of Crucible thickness), products that have been cut sales of subject merchandise have not Materials Corp., and Electralloy Corp. from stainless steel sheet, strip or plate, been made at less than normal value. If requested the Department conduct an wire (i.e., cold-formed products in coils, these preliminary results are adopted in administrative review of BGH. of any uniform solid cross section along our final results, we will instruct U.S. In accordance with 19 CFR their whole length, which do not Customs and Border Protection to 351.221(b)(1), we published a notice of conform to the definition of flat-rolled liquidate entries of stainless steel bar initiation of this antidumping duty products), and angles, shapes and from BGH Edelstahl Freital GmbH, BGH administrative review on April 28, 2004. sections. Edelstahl Lippendorf GmbH, BGH See Notice of Initiation of Antidumping The stainless steel bar subject to this Edelstahl Lugau GmbH, and BGH and Countervailing Duty Administrative review is currently classifiable under Edelstahl Siegen GmbH in accordance Reviews, 69 FR 23170 (April 28, 2004). subheadings 7222.11.00.05, with the final results of review. The period of review (‘‘POR’’) is March 7222.11.00.50, 7222.19.00.05, We invite interested parties to 1, 2003, through February 29, 2004. 7222.19.00.50, 7222.20.00.05, comment on these preliminary results. An antidumping duty questionnaire 7222.20.00.45, 7222.20.00.75, and We will issue the final results not later was sent to BGH on May 18, 2004. We 7222.30.00.00 of the Harmonized Tariff than 120 days from the date of received timely responses from BGH on Schedule of the United States publication of this notice. June 24 and July 2, 2004. We issued a (‘‘HTSUS’’). Although the HTSUS EFFECTIVE DATE: December 7, 2004. supplemental questionnaire to BGH on subheadings are provided for FOR FURTHER INFORMATION CONTACT: September 14, 2004. We received a convenience and customs purposes, the Andrew Smith, Import Administration, response from BGH on October 12, written description of the scope of the International Trade Administration, 2004. order is dispositive.

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Fair Value Comparisons Export Price comparable merchandise to the unaffiliated parties, we determined that To determine whether sales of We calculated EP in accordance with section 772(a) of the Act because the the sales made to the affiliated party stainless steel bar by BGH to the United were at arm’s length. See Antidumping States were made at less than normal merchandise was sold to the first unaffiliated purchaser in the United Proceedings: Affiliated Party Sales in value (‘‘NV’’), we compared the export States prior to importation by the the Ordinary Course of Trade, 67 FR price (‘‘EP’’) to NV, as described in the exporter or producer outside the United 69186 (November 15, 2002). In ‘‘Export Price’’ and ‘‘Normal Value’’ States and because constructed export accordance with the Department’s sections of this notice, below. price methodology was not otherwise practice, we only included in our Pursuant to section 777A(d)(2) of the warranted. We based EP on the packed margin analysis those sales to affiliated Tariff Act of 1930, as amended (‘‘the ex-works or delivered price to parties that were made at arm’s length. Act’’), we compared the EPs of unaffiliated purchasers in the United C. Cost of Production individual U.S. transactions to the States. We identified the correct starting Because we disregarded sales below weighted-average NV of the foreign like price by accounting for billing the cost of production (‘‘COP’’) in the product, where there were sales made in adjustments and early payment last completed review for BGH (see the ordinary course of trade, as discounts. We also made deductions SSBar First Review), we had reasonable discussed in the ‘‘Normal Value’’ from the starting price for movement grounds to believe or suspect that sales section of this notice. expenses in accordance with section 772(c)(2)(A) of the Act. These of the foreign like product under Product Comparisons deductions included foreign inland consideration for the determination of NV in this review may have been made In accordance with section 771(16) of freight, international freight, U.S. other transportation expense, marine at prices below the COP, as provided by the Act, we considered all products section 773(b)(2)(A)(ii) of the Act. produced by BGH covered by the insurance, U.S. customs duties (including harbor maintenance fees and Therefore, pursuant to section 773(b)(1) description in the ‘‘Scope of the Order’’ of the Act, we requested that BGH section, above, to be foreign like merchandise processing fees), and U.S. inland freight. respond to section D, the cost of products for purposes of determining production/constructed value section of appropriate product comparisons to Normal Value the questionnaire. U.S. sales. In accordance with section A. Home Market Viability We conducted the COP analysis 773(a)(1)(C)(ii) of the Act, in order to described below. determine whether there was a In order to determine whether there 1. Calculation of COP sufficient volume of sales in the home was a sufficient volume of sales in the market to serve as a viable basis for home market to serve as a viable basis In accordance with section 773(b)(3) calculating NV, we compared BGH’s for calculating NV (i.e., whether the of the Act, we calculated COP based on volume of home market sales of the aggregate volume of home market sales the sum of BGH’s cost of materials and foreign like product to the volume of its of the foreign like product is equal to or fabrication for the foreign like product, U.S. sales of the subject merchandise. greater than five percent of the aggregate plus amounts for general and (For further details, see the ‘‘Normal volume of U.S. sales), we compared administrative expenses (‘‘G&A’’), Value’’ section of this notice.) BGH’s volume of home market sales of interest expenses, and home market the foreign like product to the volume packing costs. We relied on the COP We compared U.S. sales to sales made of its U.S. sales of the subject information provided by BGH, except in in the comparison market within the merchandise, in accordance with 19 the following instances. contemporaneous window period, CFR 351.404(b)(2) of the Department’s BGH calculated its G&A expense ratio which extends from three months prior regulations. Because BGH’s aggregate by dividing the total company-wide to the POR until two months after the volume of home market sales of the G&A expenses, which included BGH’s POR. Where there were no sales of foreign like product was greater than operating companies’ and parent identical merchandise in the five percent of its aggregate volume of companies’ G&A expenses, by the total comparison market made in the U.S. sales for the subject merchandise, company-wide cost of manufacture ordinary course of trade to compare to we determined that the home market (‘‘COM’’), which included BGH’s U.S. sales, we compared U.S. sales to was viable. operating companies’ COM and its sales of the most similar foreign like parent companies’ COM using its parent B. Affiliated-Party Transactions and product made in the ordinary course of companies’ cost of goods sold. Arm’s-Length Test trade. In making product comparisons, Consistent with the LTFV Final and consistent with the Notice of Final The Department’s practice with SSBar First Review, we recalculated Determination of Sales at Less Than respect to the use of home market sales BGH’s G&A ratio by excluding its parent Fair Value: Stainless Steel Bar from to affiliated parties for NV is to companies’ cost of goods sold from the Germany, 67 FR 3159 (January 23, 2002) determine whether such sales are at calculation of the G&A expense ratio. and Notice of Amended Final arm’s-length prices. BGH made sales in We also recalculated BGH’s interest Determination of Sales at Less Than the home market to affiliated and expense ratio by including all of BGH’s Fair Value and Antidumping Duty unaffiliated customers. To test whether consolidated exchange gains and losses Order: Stainless Steel Bar from the sales to affiliates were made at on foreign currency in the calculation of Germany, 67 FR 10382 (March 7, 2002) arm’s-length prices, we compared the the interest expense ratio. See Stainless (collectively ‘‘LTFV Final’’), we starting prices of sales to affiliated and Steel Bar from India; Final Results of matched foreign like products based on unaffiliated customers net of all Antidumping Duty Administrative the physical characteristics reported by movement charges, direct selling Review, 68 FR 47543 (August 11, 2003) BGH in the following order: general type expenses, discounts, and packing. and accompanying Issues and Decision of finish; grade; remelting process; type Where the price to the affiliated party Memorandum at Comment 19. of final finishing operation; shape; and was, on average, within a range of 98 to For further explanation about these size. 102 percent of the price of the same or adjustments, see Memorandum from

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Case Analyst to File, ‘‘Preliminary as the EP. Sales are made at different were made from inventory, they differed Results Calculation Memorandum for LOTs if they are made at different from channel 1 and 2 made-to-order BGH Group, Inc.,’’ dated December 1, marketing stages (or their equivalent). sales with respect to inventory services, 2004, located in the Department’s CRU. See 19 CFR 351.412(c)(2). Substantial but that they were otherwise similar to differences in selling activities are a channels 1 and 2 with respect to sales 2. Test of Home Market Sales Prices necessary, but not sufficient, condition process, freight services, and warranty On a product-specific basis, we for determining that there is a difference service. While inventory maintenance compared the adjusted weighted- in the stages of marketing. Id.; see also function for channel 3 sales was average COP to the home market sales Notice of Final Determination of Sales distinguishable from channels 1 and 2, of the foreign like product during the at Less Than Fair Value: Certain Cut-to- this selling function difference was not POR, as required under section 773(b) of Length Carbon Steel Plate From South significant in that sales reported in the Act, in order to determine whether Africa, 62 FR 61731, 61732 (November channel 3 were made in large lot sizes the sales prices were below the COP. 19, 1997). In order to determine whether similar to those in channels 1 and 2, The prices were exclusive of any the comparison sales were at different indicating that inventory handling on applicable movement charges, billing stages in the marketing process than the these sales was minimal. As such, we adjustments, commissions, discounts, U.S. sales, we reviewed the distribution find that this selling function difference rebates, interest revenue and indirect system in each market (i.e., the ‘‘chain alone was not sufficient to distinguish selling expenses. In determining of distribution’’),1 including selling channel 3 sales from channels 1 and 2. whether to disregard home market sales functions,2 class of customer (‘‘customer Therefore, we found that channels of made at prices below the COP, we category’’), and the level of selling distribution 1, 2 and 3 were sufficiently examined, in accordance with sections expenses for each sale. similar to constitute a distinct level of 773(b)(1)(A) of the Act, whether such Pursuant to section 773(a)(1)(B)(i) of trade (LOTH 1). sales were made (1) within an extended the Act, in identifying levels of trade for BGH included in distribution channel period of time in substantial quantities, EP and comparison market sales (i.e., 4 any sale with a length of under 3 and (2) at prices which did not permit NV based on either home market or meters or having ‘‘other revenue’’ the recovery of all costs within a third country prices),3 we consider the reported on the invoice. BGH reasonable period of time. starting prices before any adjustments. When the Department is unable to considered these channel 4 sales to be 3. Results of the COP Test match U.S. sales to sales of the foreign a separate LOT because of service center Pursuant to section 773(b)(1) of the like product in the comparison market selling functions provided for bar sold Act, where less than 20 percent of the at the same LOT as the EP, the through this channel. ‘‘Other revenue’’ respondent’s sales of a given product are Department may compare the U.S. sale is a separate charge appearing on the made at prices below the COP, we do to sales at a different LOT in the invoice for special services performed not disregard any below-cost sales of comparison market. In comparing EP by the inventory warehouse, such as that product because we determine that sales at a different LOT in the cutting, grinding, special finishing and in such instances the below-cost sales comparison market, where available additional testing. Because BGH claims were not made in ‘‘substantial data make it practical, we make a LOT that ‘‘other revenue’’ is sometimes not quantities.’’ Where 20 percent or more adjustment under section 773(a)(7)(A) of listed separately on the invoice when of a respondent’s sales of a given the Act. service center functions have been product are at prices less than the COP, BGH reported 4 channels of performed, but instead is included as we determine that in such instances the distribution in the home market. part of the selling price, BGH used below cost sales represent ‘‘substantial Channels 1 and 2 were made-to-order length of the bars sold as an alternate quantities’’ within an extended period sales to distributors and end-users, indicator of when service center of time in accordance with section respectively. Channels 3 and 4 were functions were performed. Specifically, 773(b)(1)(A) of the Act. In such cases, sales from inventory to distributors and BGH claims that because the minimum we also determine whether such sales end-users, respectively. We examined production length for rolled or forged are made at prices which would not the selling functions reported by BGH bars is 3 meters, any sale from inventory permit recovery of all costs within a for each of these channels and found having a length of less than 3 meters, reasonable period of time, in accordance that made-to-order sales in channels 1 whether or not ‘‘other revenue’’ is with section 773(b)(1)(B) of the Act. and 2 were similar with respect to sales included on the invoice, must undergo We found that, for certain specific process, freight services, inventory sawing in the company’s warehouse/ products, more than 20 percent of the maintenance, and warranty service. We service center. We agree with BGH that comparison market sales were at prices also found that because channel 3 sales the ‘‘other revenue’’ charged on certain less than the COP and, thus, the below- sales is indicative of service center cost sales were made within an 1 The marketing process in the United States and functions and that these sales are extended period of time in substantial comparison markets begins with the producer and distinct from LOTH 1 with respect to extends to the sale to the final user or consumer. sales process and inventory quantities. In addition, these sales were The chain of distribution between the two may have made at prices that did not provide for many or few links, and the respondent’s sales occur maintenance, and as such constitute a the recovery of costs within a reasonable somewhere along this chain. separate level of trade, LOTH 2. period of time. We therefore excluded 2 Selling functions associated with a particular However, we disagree with BGH that these sales and used the remaining sales chain of distribution help us to evaluate the level(s) any sale with a reported length of less of trade in a particular market. For purposes of than 3 meters, and for which no ‘‘other as the basis for determining NV, in these preliminary results, we have organized the accordance with section 773(b)(1). common selling functions into four major revenue’’ has been reported separately categories: Sales process and marketing support, on the invoice, has been subject to D. Level of Trade freight and delivery, inventory and warehousing, service center functions. First, while Section 773(a)(1)(B)(i) of the Act and quality assurance/warranty services. BGH may, as claimed, have standard 3 Where NV is based on Constructed Value states that, to the extent practicable, the (‘‘CV’’), we determine the NV LOT based on the production lengths of greater than 3 Department will calculate NV based on LOT of the sales from which we derive selling meters in length, BGH has not sales at the same level of trade (‘‘LOT’’) expenses, G&A and profit for CV, where possible. supported this position on the record.

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Second, BGH’s methodology for these channels and found them to be commissions were granted on sales in identifying sales of less than 3 meters similar with respect to sales process, one market but not in the other (the does not reflect the length of each bar freight services, and warranty service. commission offset). sold. In order to obtain bar length, BGH Therefore, we determine that the two EP Furthermore, we made adjustments applied a formula to the total weight of channels of distribution constitute a for differences in costs attributable to all bars for each sales transaction and single LOT (LOTU 1). differences in the physical used this total length to establish The EP LOT differed considerably characteristics of the merchandise in whether a sale was above or below 3 from LOTH 2 with respect to sales accordance with section 773(a)(6)(C)(ii) meters in length. Therefore, if one sale process and warehousing/inventory of the Act and 19 CFR 351.411. In was comprised of 5 bars of 2 meters maintenance. However, the EP LOT is addition, where appropriate, we made each, the reported length would be 10 similar to LOTH 1 with respect to sales adjustments for differences in meters. While this methodology may process, freight services, warehouse/ circumstances of sale (‘‘COS’’) in understate the actual length of each bar inventory maintenance and warranty accordance with section 773(a)(6)(C)(iii) sold, we find it to be an imprecise service. Consequently, we matched the of the Act and 19 CFR 351.410 by methodology for establishing bar length. EP sales to sales at the same LOT in the deducting direct selling expenses Third, using the home market sales home market (LOTH 1). Where no incurred on comparison market sales database provided by BGH, we matches at the same LOT were possible, (credit expenses less interest revenue), compared sales transactions on specific we matched to sales in LOTH 2 and we and adding U.S. direct selling expenses invoices and found instances where, for made a LOT adjustment. See section (credit expenses and commissions). transactions on the same invoice of the 773(a)(7)(A) of the Act. Where payment dates were unreported, same bar above and below 3 meters, the E. Calculation of Normal Value Based we recalculated the credit expenses same invoice price was charged, on Comparison Market Prices using the last date of new information indicating that ‘‘other revenue’’ had not received in place of actual date of been added to the invoice price for bars We calculated NV based on the ex- payment. We deducted home market less than 3 meters. Therefore, for works or delivered price to unaffiliated packing costs and added U.S. packing distribution channel 4 sales with no customers or prices to affiliated costs in accordance with section ‘‘other revenue’’ separately reported on customers that we determined to be at 773(a)(6)(A) and (B) of the Act. the invoice, we preliminarily determine arm’s length. We identified the correct that these sales are similar to LOTH 1 starting price by accounting for billing Finally, where appropriate, we made sales with respect to sales process, adjustments, early payment discounts, an adjustment for differences in LOT freight service and warranty service. other discounts, and rebates. In under section 773(a)(7)(A) of the Act BGH reported EP sales through two accordance with section 773(a)(6)(B)(ii) and 19 CFR 351.412(b)–(e). channels of distribution, made-to-order of the Act, we made deductions for Preliminary Results of the Review sales to distributors (channel 1) and inland freight and inland insurance. We warehouse inventory sales to also made adjustments, in accordance We preliminarily find that the distributors (channel 3). We examined with 19 CFR 351.410(e), for indirect following dumping margin exists for the the chain of distribution and the selling selling expenses incurred in the home period March 1, 2003, through February activities associated with sales through market or on U.S. sales where 29, 2004.

Manufacturer/exporter Margin

BGH ...... 0.01 de minimis

Assessment Rates by aggregating the dumping margins publication of the final results of this calculated for all U.S. sales to that review. Upon completion of this importer (or customer) and dividing this administrative review, the Department Cash Deposit Rates amount by the entered value of the sales will determine, and U.S. Customs and to that importer (or customer). Where an The following deposit requirements Border Protection (‘‘CBP’’) shall assess, importer (customer)-specific ad valorem will be effective upon completion of the antidumping duties on all appropriate final results of this administrative rate is greater than de minimis and the entries. Pursuant to 19 CFR 351.212(b), review for all shipments of stainless entered value is available, we apply the the Department calculates an steel bar from Germany entered, or assessment rate for each importer of the assessment rate to the entered value of withdrawn from warehouse, for subject merchandise. Upon issuance of the importer’s/customer’s entries during consumption on or after the publication the final results of this administrative the POR. Where an importer (or date of the final results of this review, if any importer (or customer)- customer)-specific ad valorem rate is administrative review, as provided by specific assessment rates calculated in greater than de minimis, and the entered section 751(a)(1) of the Act: (1) The cash the final results are above de minimis value is not available, we calculated a deposit rates for the reviewed company (i.e., at or above 0.5 percent), the per unit assessment rate by aggregating will be the rate established in the final Department will issue appraisement the dumping margins calculated for U.S. results of this administrative review instructions directly to CBP to assess sales to that importer (or customer) and (except no cash deposit will be required antidumping duties on appropriate dividing this amount by the total if its weighted-average margin is de entries. To determine whether the duty quantity sold to that importer (or minimis, i.e., less than 0.5 percent); (2) assessment rates covering the period customer). for merchandise exported by were de minimis, in accordance with The Department will issue manufacturers or exporters not covered the requirement set forth in 19 CFR in this review but covered in the LTFV appropriate assessment instructions 351.106(c)(2), we calculated importer Final investigation, the cash deposit directly to CBP within 15 days of (or customer)-specific ad valorem rates will continue to be the most recent rate

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published in the final determination for DEPARTMENT OF COMMERCE the Sunset Regulations. See Notice of which the manufacturer or exporter Gallatin Steel, IPSCO and Steel received an individual rate; (3) if the International Trade Administration Dynamics, May 13, 2004; Notice of exporter is not a firm covered in this [C–351–829] Nucor, May 6, 2004; Notice of United review, or the original investigation, but States Steel, May 18, 2004; Notice of the manufacturer is, the cash deposit Hot-Rolled Flat-Rolled Carbon-Quality International Steel Group, May 18, 2004; rate will be the rate established for the Steel From Brazil; Final Results of the Notice of Ispat Inland, May 14, 2004. All most recent period for the manufacturer Expedited Sunset Review of the domestic interested parties claimed of the merchandise; and (4) if neither Countervailing Duty Order interested-party status, under section the exporter nor the manufacturer is a 771(9)(C) of the Act, as U.S. producers firm covered in this review, the cash AGENCY: Import Administration, of the domestic like product. See deposit rate will be 16.96 percent, the International Trade Administration, Domestic Response of the Domestic ‘‘all others’’ rate established in the LTFV Department of Commerce. Interested Parties (June 2, 2004). Ispat Final. SUMMARY: On May 3, 2004, the Inland, Gallatin Steel, IPSCO, Steel Department of Commerce (‘‘the Dynamics and United States Steel were Public Comment Department’’) initiated a sunset review petitioners in the investigation and have of the countervailing duty (‘‘CVD’’) been involved in this proceeding since Any interested party may request a order on hot-rolled flat-rolled carbon- its inception. Id. at 3. According to the hearing within 30 days of publication of quality steel (‘‘hot-rolled steel’’) from domestic interested parties in this this notice. A hearing, if requested, will Brazil pursuant to section 751(c) of the review, International Steel Group be 37 days after the publication of this Tariff Act of 1930, as amended (‘‘the formed in 2002 and is the successor to notice, or the first business day Act’’). See Initiation of Five-Year the original petitioners that no longer thereafter. Issues raised in the hearing (Sunset) Reviews, 69 FR 24118 (May 3, exist: LTV Steel Company, Bethlehem will be limited to those raised in the 2004). On the basis of a notice of intent Steel Corporation, and Weirton Steel case and rebuttal briefs. Interested to participate and adequate substantive Corporation. Id. parties may submit case briefs within 30 responses filed on behalf of domestic As a result of the lack of respondent days of the date of publication of this interested parties and inadequate participation in this sunset review, notice. Rebuttal briefs, which must be response from respondent interested pursuant to section 751(c)(3)(B) of the limited to issues raised in the case parties (in this case, no response), the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), briefs, may be filed not later than 35 Department conducted an expedited the Department conducted an expedited days after the date of publication of this (120-day) sunset review. As a result of (120-day) sunset review of this order. notice. Parties who submit case briefs or this review, the Department finds that Scope of Review rebuttal briefs in this proceeding are revocation of the CVD order would requested to submit with each argument likely lead to continuation or recurrence For purposes of this order, the (1) a statement of the issue and (2) a of subsidies at the levels indicated in products covered are certain hot-rolled brief summary of the argument with an the ‘‘Final Results of Review’’ section of flat-rolled carbon-quality steel products electronic version included. this notice. of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor The Department will issue the final EFFECTIVE DATES: December 7, 2004. results of this administrative review, coated with metal and whether or not FOR FURTHER INFORMATION CONTACT: painted, varnished, or coated with including the results of its analysis of Hilary Sadler, Esq., Office of Policy for issues raised in any such written briefs plastics or other non-metallic Import Administration, International substances, in coils (whether or not in or hearing, within 120 days of Trade Administration, U.S. Department publication of these preliminary results. successively superimposed layers) of Commerce, 14th Street and regardless of thickness, and in straight Notification to Importers Constitution Avenue, NW., Washington, lengths, of a thickness less than 4.75 DC 20230; telephone: (202) 482–4340. mm and of a width measuring at least This notice also serves as a SUPPLEMENTARY INFORMATION: 10 times the thickness. Universal mill preliminary reminder to importers of plate (i.e., flat-rolled products rolled on Background their responsibility under 19 CFR four faces or in a closed box pass, of a 351.402(f) to file a certificate regarding On May 3, 2004, the Department width exceeding 150 mm, but not the reimbursement of antidumping initiated a sunset review of the CVD exceeding 1250 mm and of a thickness duties prior to liquidation of the order on hot-rolled steel from Brazil of not less than 4 mm, not in coils and relevant entries during this review pursuant to section 751(c) of the Act. without patterns in relief) of a thickness period. Failure to comply with this See Initiation of Five-Year (Sunset) not less than 4.0 mm is not included requirement could result in the Reviews, 69 FR 24118 (May 3, 2004). within the scope of these investigations. Secretary’s presumption that The Department received notices of Specifically included in this scope are reimbursement of antidumping duties intent to participate and substantive vacuum degassed, fully stabilized occurred and the subsequent assessment responses from Nucor Corp. (‘‘Nucor’’); (commonly referred to as interstitial-free of double antidumping duties. Ispat Inland, Inc., and its division Ispat (‘‘IF’’)) steels, high strength low alloy We are issuing and publishing these Inland Flat Products (‘‘Ispat Inland’’); (‘‘HSLA’’) steels, and the substrate for results in accordance with sections International Steel Group, Inc. motor lamination steels. IF steels are 751(a)(1) and 777(i)(1) of the Act. (‘‘International Steel Group’’); Gallatin recognized as low carbon steels with Steel Co. (‘‘Gallatin Steel’’); IPSCO Steel micro-alloying levels of elements such Dated: December 1, 2004. Inc. (‘‘IPSCO’’); Steel Dynamics, Inc. as titanium and/or niobium added to Joseph A. Spetrini, (‘‘Steel Dynamics’’); and United States stabilize carbon and nitrogen elements. Acting Assistant Secretary for Import Steel Corp. (‘‘United States Steel’’) HSLA steels are recognized as steels Administration. (collectively, ‘‘domestic interested with micro-alloying levels of elements [FR Doc. E4–3529 Filed 12–6–04; 8:45 am] parties’’) within the applicable deadline such as chromium, copper, niobium, BILLING CODE 3510–DS–P specified in section 351.218(d)(1)(i) of titanium, vanadium, and molybdenum.

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The substrate for motor lamination tungsten, or 0.012 percent of boron, or • SAE/AISI grades of series 2300 and steels contains micro-alloying levels of 0.10 percent of molybdenum, or 0.10 higher. elements such as silicon and aluminum. percent of niobium, or 0.41 percent of • Ball bearing steels, as defined in the Steel products to be included in the titanium, or 0.15 percent of vanadium, HTSUS. scope of this order, regardless of HTSUS or 0.15 percent of zirconium. • definitions, are products in which: (1) Tool steels, as defined in the All products that meet the physical Iron predominates, by weight, over each HTSUS. and chemical description provided of the other contained elements; (2) the • Silico-manganese (as defined in the above are within the scope of this order carbon content is 2 percent or less, by HTSUS) or silicon electrical steel with unless otherwise excluded. The weight; and (3) none of the elements a silicon level exceeding 1.50 percent. following products, by way of example, listed below exceeds the quantity, by • ASTM specifications A710 and weight, respectively indicated: 1.80 are outside and/or specifically excluded from the scope of this agreement: A736. percent of manganese, or 1.50 percent of • silicon, or 1.00 percent of copper, or ∑ Alloy hot-rolled steel products in USS Abrasion-resistant steels (USS 0.50 percent of aluminum, or 1.25 which at least one of the chemical AR 400, USS AR 500). percent of chromium, or 0.30 percent of elements exceeds those listed above • Hot-rolled steel coil which meets cobalt, or 0.40 percent of lead, or 1.25 (including e.g., ASTM specifications the following chemical, physical and percent of nickel, or 0.30 percent of A543, A387, A514, A517, and A506). mechanical specifications:

C Mn P S Si Cr Cu Ni

0.10–0.14% ...... 0.90% Max 0.025% Max 0.005% Max 0.30–0.50% 0.30–0.50% 0.20–0.40% 0.20% Max

Width = 44.80 inches maximum; Strength = 50,000 ksi minimum; Tensile • Hot-rolled steel coil which meets Thickness = 0.063-0.198 inches; Yield Strength = 70,000—88,000 psi. the following chemical, physical and mechanical specifications:

C Mn P S Si Cr Cu Ni

0.10–0.16% ...... 0.70–0.90% 0.025% Max 0.006% Max 0.30–0.50% 0.30–0.50% 0.25% Max 0.20% Max Mo 0.21% Max

Width = 44.80 inches maximum; Yield Strength = 80,000 ksi minimum; ∑ Hot-rolled steel coil which meets Thickness = 0.350 inches maximum; Tensile Strength = 105,000 psi Aim. the following chemical, physical and mechanical specifications:

C Mn P S Si Cr Cu Ni

0.10–0.14% ...... 1.30–1.80% 0.025% Max 0.005% Max 0.30–0.50% 0.50–0.70% 0.20–0.40% 0.20% Max V(wt.) ...... Cb 0.10% Max ...... 0.08% Max

Width = 44.80 inches maximum; Yield Strength = 80,000 ksi minimum; • Hot-rolled steel coil which meets Thickness = 0.350 inches maximum; Tensile Strength = 105,000 psi Aim. the following chemical, physical and mechanical specifications:

C Mn P S Si Cr Cu Ni

0.15% Max ...... 1.40% Max 0.025% Max 0.010% Max 0.50% Max 1.00% Max 0.50% Max 0.20% Max Nb ...... Ca Al 0.005% Min ...... Treated 0.01–0.07%

Width = 39.37 inches; Thickness = 540 N/mm2 and 640 N/mm2 and an restrictions as follows: 0.012 percent 0.181 inches maximum; Yield Strength elongation percentage ≥ 26 percent for maximum phosphorus, 0.015 percent = 70,000 psi minimum for thicknesses thicknesses of 2 mm and above, or (ii) maximum sulfur, and 0.20 percent ≤ 0.148 inches and 65,000 psi minimum a tensile strength between 590 N/mm2 maximum residuals including 0.15 for thicknesses ≤0.148 inches; Tensile and 690 N/mm2 and an elongation percent maximum chromium. ≥ Strength = 80,000 psi minimum. percentage 25 percent for thicknesses • Grade ASTM A570–50 hot-rolled • Hot-rolled dual phase steel, phase- of 2 mm and above. steel sheet in coils or cut lengths, width hardened, primarily with a ferritic- • Hot-rolled bearing quality steel, of 74 inches (nominal, within ASTM martensitic microstructure, contains 0.9 SAE grade 1050, in coils, with an tolerances), thickness of 11 gauge (0.119 percent up to and including 1.5 percent inclusion rating of 1.0 maximum per inch nominal), mill edge and skin silicon by weight, further characterized ASTM E 45, Method A, with excellent passed, with a minimum copper content by either (i) tensile strength between surface quality and chemistry of 0.20%.

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The merchandise subject to this and the substrate for motor lamination accompanying Decision Memorandum agreement is classified in the steel may also enter under the following include the likelihood of continuation Harmonized Tariff Schedule of the tariff numbers: 7225.11.00.00, or recurrence of countervailable United States (HTSUS) at subheadings: 7225.19.00.00, 7225.30.30.50, subsidies, the net subsidy likely to 7208.10.15.00, 7208.10.30.00, 7225.30.70.00, 7225.40.70.00, prevail were the order revoked, and the 7208.10.60.00, 7208.25.30.00, 7225.99.00.90, 7226.11.10.00, nature of the subsidy. Parties can find 7208.25.60.00, 7208.26.00.30, 7226.11.90.30, 7226.11.90.60, a complete discussion of all issues 7208.26.00.60, 7208.27.00.30, 7226.19.10.00, 7226.19.90.00, raised in this review and the 7208.27.00.60, 7208.36.00.30, 7226.91.50.00, 7226.91.70.00, corresponding recommendations in this 7208.36.00.60, 7208.37.00.30, 7226.91.80.00, and 7226.99.00.00. public memorandum which is on file in 7208.37.00.60, 7208.38.00.15, Although the HTSUS subheadings are the Central Records Unit, room B–099, 7208.38.00.30, 7208.38.00.90, provided for convenience and customs of the main Commerce building. In 7208.39.00.15, 7208.39.00.30, purposes, the written description of the addition, a complete version of the 7208.39.00.90, 7208.40.60.30, merchandise under this order is Decision Memorandum can be accessed 7208.40.60.60, 7208.53.00.00, dispositive. directly on the Web at http:// 7208.54.00.00, 7208.90.00.00, ia.ita.doc.gov/frn, under the heading Analysis of Comments Received 7210.70.30.00, 7210.90.90.00, ‘‘December 2004.’’ The paper copy and 7211.14.00.30, 7211.14.00.90, All issues raised in this review are electronic version of the Decision 7211.19.15.00, 7211.19.20.00, addressed in the ‘‘Issues and Decision Memorandum are identical in content. 7211.19.30.00, 7211.19.45.00, Memorandum’’ (‘‘Decision Final Results of Review 7211.19.60.00, 7211.19.75.30, Memorandum’’) from Ronald K. 7211.19.75.60, 7211.19.75.90, Lorentzen, Acting Director, Office of We determine that revocation of the 7212.40.10.00, 7212.40.50.00, Policy, Import Administration, to James CVD order on hot-rolled steel from 7212.50.00.00. Certain hot-rolled flat- J. Jochum, Assistant Secretary for Import Brazil would be likely to lead to rolled carbon-quality steel covered by Administration, dated November 29, continuation or recurrence of this order, including: vacuum degassed, 2004, which is hereby adopted by this countervailable subsidies at the rates fully stabilized; high strength low alloy; notice. The issues discussed in the listed below:

Net countervailable Producers/Exporters subsidy (percent)

Usinas Siderugicas de Minas Gerais and Companhia Siderugica Paulista (‘‘USIMINAS/ COSIPA’’) ...... 9.67 Companhia Siderugica Nacional (‘‘CSN’’) ...... 6.35 All Others ...... 7.81

This notice also serves as the only DEPARTMENT OF COMMERCE companies are listed below in the reminder to parties subject to section entitled ‘‘Final Results of administrative protective orders International Trade Administration Review.’’ (‘‘APO’’) of their responsibility [C–475–819 ] EFFECTIVE DATE: December 7, 2004. concerning the return or destruction of FOR FURTHER INFORMATION CONTACT: proprietary information disclosed under Certain Pasta from Italy: Final Results Melani Miller Harig or Andrew Smith, APO in accordance with 19 CFR of the Seventh Countervailing Duty AD/CVD Operations, Office 1, Import 351.305 of the Department’s regulations. Administrative Review Administration, U.S. Department of Timely notification of the return or AGENCY: Import Administration, Commerce, Room 3099, 14th Street and destruction of APO materials or Constitution Avenue, NW., Washington, conversion to judicial protective order is International Trade Administration, U.S. Department of Commerce. DC 20230; telephone (202) 482–0116 hereby requested. Failure to comply and (202) 482–1276, respectively. with the regulations and terms of an ACTION: Notice of final results of SUPPLEMENTARY INFORMATION: APO is a violation which is subject to countervailing duty administrative sanction. review. Case History We are issuing and publishing the SUMMARY: On July 30, 2004, the U.S. On July 24, 1996, the U.S. Department results and notice in accordance with Department of Commerce published in of Commerce (‘‘the Department’’) sections 751(c), 752, and 777(i)(1) of the the Federal Register its preliminary published a countervailing duty order Act. results of the administrative review of on certain pasta (‘‘pasta’’ or ‘‘subject the countervailing duty order on certain merchandise’’) from Italy. See Notice of Dated: November 29, 2004. pasta from Italy for the period January Countervailing Duty Order and James J. Jochum, 1, 2002 through December 31, 2002. Amended Final Affirmative Assistant Secretary for Import Based on information received since the Countervailing Duty Determination: Administration. preliminary results and our analysis of Certain Pasta From Italy, 61 FR 38544 [FR Doc. E4–3480 Filed 12–6–04; 8:45 am] the comments received, we have revised (July 24, 1996). BILLING CODE 3510–DS–P the net subsidy rates for Pasta Zara In accordance with 19 CFR S.p.A./Pasta Zara 2 S.p.A. and Pastificio 351.213(b), this review of the order Corticella S.p.A./Pastificio Combattenti covers the following producers or S.p.A. Therefore, the final results differ exporters of the subject merchandise for from the preliminary results. The final which a review was specifically net subsidy rates for the reviewed requested: Pastificio Fratelli Pagani

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S.p.A. (‘‘Pagani’’), Pastificio Corticella the appropriate certificate issued by Pasta from Italy: Affirmative Final S.p.A./Pastificio Combattenti S.p.A. Bioagricert S.r.l. are also excluded from Determination of Circumvention of the (collectively, ‘‘Corticella/Combattenti’’), this order. See Memorandum from Eric Antidumping Duty Order, 63 FR 54672 Pasta Zara S.p.A./Pasta Zara 2 S.p.A. B. Greynolds to Melissa G. Skinner, (October 13, 1998). (‘‘Pasta Zara 2’’)1 (collectively ‘‘Pasta dated August 4, 2004, which is on file (4) On October 26, 1998, the Zara/Pasta Zara 2’’), Pasta Lensi S.r.l. in the Department’s Central Records Department self–initiated a scope (‘‘Lensi’’),2 and Pastificio Carmine Unit (‘‘CRU’’) in Room B–099 of the inquiry to determine whether a package Russo S.p.A./Pastificio Di Nola S.p.A.. main Department building. weighing over five pounds as a result of Based on withdrawal of the request The merchandise subject to review is allowable industry tolerances is within for review, we rescinded this currently classifiable under items the scope of the antidumping and administrative review for Pastificio 1901.90.9095 and 1902.19.20 of the countervailing duty orders. On May 24, Antonio Pallante S.r.l. (See Certain Harmonized Tariff Schedule of the 1999, we issued a final scope ruling Pasta from Italy: Preliminary Results United States (‘‘HTSUS’’). Although the finding that, effective October 26, 1998, and Partial Rescission of the Seventh HTSUS subheadings are provided for pasta in packages weighing or labeled Countervailing Duty Administrative convenience and customs purposes, the up to (and including) five pounds four Review, 69 FR 45676 (July 30, 2004) written description of the merchandise ounces is within the scope of the (‘‘Preliminary Results’’).) subject to the order is dispositive. antidumping and countervailing duty Since the publication of the orders. See Memorandum from John Scope Rulings Preliminary Results, case briefs were Brinkmann to Richard Moreland, dated submitted on August 30, 2004 by Pasta The Department has issued the May 24, 1999, which is available in the Zara/Pasta Zara 2 and Corticella/ following scope rulings to date: CRU. Combattenti. The Department did not (1) On August 25, 1997, the (5) On April 27, 2000, the Department conduct a hearing in this review Department issued a scope ruling that self–initiated an anti–circumvention because none was requested. multicolored pasta, imported in kitchen inquiry to determine whether Pagani’s display bottles of decorative glass that importation of pasta in bulk and Scope of the Review are sealed with cork or paraffin and subsequent repackaging in the United Imports covered by this review are bound with raffia, is excluded from the States into packages of five pounds or shipments of certain non–egg dry pasta scope of the antidumping and less constitutes circumvention with in packages of five pounds (2.27 countervailing duty orders. See respect to the antidumping and kilograms) or less, whether or not Memorandum from Edward Easton to countervailing duty orders on pasta enriched or fortified or containing milk Richard Moreland, dated August 25, from Italy pursuant to section 781(a) of or other optional ingredients such as 1997, which is on file in the CRU. the Act and 19 CFR 351.225(b). See chopped vegetables, vegetable purees, (2) On July 30, 1998, the Department Certain Pasta from Italy: Notice of milk, gluten, diastases, vitamins, issued a scope ruling finding that Initiation of Anti–circumvention Inquiry coloring and flavorings, and up to two multipacks consisting of six one–pound of the Antidumping and Countervailing percent egg white. The pasta covered by packages of pasta that are shrink– Duty Orders, 65 FR 26179 (May 5, 2000). this scope is typically sold in the retail wrapped into a single package are On September 19, 2003, we published market, in fiberboard or cardboard within the scope of the antidumping an affirmative finding of the anti– cartons, or polyethylene or and countervailing duty orders. See circumvention inquiry. See Anti– polypropylene bags of varying Letter from Susan H. Kuhbach to Circumvention Inquiry of the dimensions. Barbara P. Sidari, dated July 30, 1998, Antidumping and Countervailing Duty Excluded from the scope of this which is available in the CRU. Orders on Certain Pasta from Italy: review are refrigerated, frozen, or (3) On October 23, 1997, the Affirmative Final Determinations of canned pastas, as well as all forms of petitioners filed an application Circumvention of Antidumping and egg pasta, with the exception of non–egg requesting that the Department initiate Countervailing Duty Orders, 68 FR dry pasta containing up to two percent an anti–circumvention investigation of 54888 (September 19, 2003). egg white. Also excluded are imports of Barilla S.r.L. (‘‘Barilla’’), an Italian organic pasta from Italy that are producer and exporter of pasta. The Period of Review accompanied by the appropriate Department initiated the investigation The period for which we are certificate issued by the Instituto on December 8, 1997. See Initiation of measuring subsidies, or POR, is January Mediterraneo Di Certificazione, Anti–Circumvention Inquiry on 1, 2002 through December 31, 2002. Bioagricoop S.r.l., QC&I International Antidumping Duty Order on Certain Services, Ecocert Italia, Consorzio per il Pasta From Italy, 62 FR 65673 Analysis of Comments Received Controllo dei Prodotti Biologici, (December 15, 1997). On October 5, All issues raised by the interested Associazione Italiana per l’Agricoltura 1998, the Department issued its final parties to this administrative review in Biologica, or Codex S.r.L. In addition, determination that, pursuant to section the case briefs are addressed in the based on publicly available information, 781(a) of the Tariff Act of 1930, as November 29, 2004 ‘‘Issues and the Department has determined that, as amended by the Uruguay Round Decision Memorandum’’ from Barbara of August 4, 2004, imports of organic Agreements Act effective January 1, E. Tillman, Acting Deputy Assistant pasta from Italy that are accompanied by 1995 (‘‘the Act’’), circumvention of the Secretary for Import Administration, to antidumping order on pasta from Italy James J. Jochum, Assistant Secretary for 1 During the first part of the period of review was occurring by reason of exports of Import Administration (‘‘Decision (calendar year 2002) (‘‘POR’’), Pasta Zara 2 was named Societa per Azioni Pasta Giulia S.p.A; on bulk pasta from Italy produced by Memorandum’’), which is hereby September 9, 2002, the company changed its name Barilla which subsequently were adopted by this notice. Attached to this to Pasta Zara 2. repackaged in the United States into notice as an appendix is a list of the 2 Lensi is the successor-in-interest to IAPC Italia packages of five pounds or less for sale issues which parties have raised and to S.r.l. See Notice of Final Results of Antidumping in the United States. See Anti– which we have responded in the and Countervailing Duty Changed Circumstances Reviews: Certain Pasta from Italy, 68 FR 41553 (July Circumvention Inquiry of the Decision Memorandum. Parties can find 14, 2003). Antidumping Duty Order on Certain a complete discussion of all issues

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raised in this review and the Changes to the Preliminary Results Final Results of Review corresponding recommendations in this In accordance with section public memorandum which is on file in Based on our analysis of the comments submitted in the case briefs, 751(a)(1)(A) of the Act and 19 CFR the CRU. In addition, a complete 351.221(b)(5), we calculated an version of the Decision Memorandum we have made changes in our calculation of the net subsidy rates for individual subsidy rate for each can be accessed directly on the Internet producer/exporter covered by this Pasta Zara/Pasta Zara 2 and Corticella/ at http://ia.ita.doc.gov/frn/ under the administrative review. For the period Combattenti. These changes are heading ‘‘Italy.’’ The paper copy and January 1, 2002 through December 31, electronic version of the Decision discussed in the relevant section of the 2002, we determine the net subsidy Memorandum are identical in content. Decision Memorandum. rates for producers/exporters under review to be those specified in the chart shown below:

Producer/Exporter Net Subsidy Rate

Pastificio Fratelli Pagani S.p.A...... 0.06 percent (de minimis) Pastificio Corticella S.p.A./Pastificio Combattenti S.p.A...... 0.09 percent (de minimis) Pasta Zara S.p.A./Pasta Zara 2 S.p.A./Societa per Azioni Pasta Giulia S.p.A ...... 0.30 percent (de minimis) Pasta Lensi S.r.l...... 0.00 percent (de minimis) Pastificio Carmine Russo S.p.A./Pastificio Di Nola S.p.A...... 0.16 percent (de minimis)

The calculations will be disclosed to all non–reviewed companies until a DEPARTMENT OF COMMERCE the interested parties in accordance review of a company assigned these with 19 CFR 351.224(b). rates is requested. International Trade Administration Because the countervailing duty rates This notice serves as a reminder to North American Free Trade Agreement, for all of the above–noted companies are parties subject to administrative less than 0.5 percent and, consequently, Article 1904 NAFTA Panel Reviews; protective order (‘‘APO’’) of their Notice of Panel Decision de minimis, we will instruct U.S. responsibility concerning the Customs and Border Protection disposition of proprietary information AGENCY: NAFTA Secretariat, United (‘‘Customs’’) to liquidate entries during disclosed under APO in accordance States Section, International Trade the period January 1, 2002 through with 19 CFR 351.305(a)(3). Timely Administration, Department of December 31, 2002 without regard to written notification of return or Commerce. countervailing duties in accordance ACTION: Notice of panel decision. with 19 CFR 351.106(c)(1). The destruction of APO materials or Department will issue appropriate conversion to judicial protective order is SUMMARY: On December 1, 2004, the instructions directly to Customs within hereby requested. Failure to comply binational panel issued its decision in 15 days of publication of these final with the regulations and the terms of an the review of the final results of the results of this review. APO is a sanctionable violation. affirmative countervailing duty re- For all other companies that were not We are issuing and publishing these determination on remand made by the reviewed (except Barilla G. e R. F.lli results in accordance with sections International Trade Administration S.p.A. and Gruppo Agricoltura Sana 751(a)(1) and 777(i)(1) of the Act. (ITA) respecting Certain Softwood S.r.L., which are excluded from the Lumber Products from Canada Dated: November 29, 2004. order), the Department has directed (Secretariat File No. USA–CDA–2002– Customs to assess countervailing duties James J. Jochum, 1904–03) affirmed in part and remanded on all entries between January 1, 2002 Assistant Secretary for Import in part the re-determination of the and December 31, 2002 at the rates in Administration. Department of Commerce. The Department will return the effect at the time of entry. Appendix The Department will also instruct determination on remand no later than Customs to collect cash deposits of List of Comments and Issues in the January 24, 2005. A copy of the estimated countervailing duties for the Decision Memorandum complete panel decision is available above–noted companies at the above– from the NAFTA Secretariat. Comment 1: Corticella/Combattenti and noted rates on the f.o.b. value of all FOR FURTHER INFORMATION CONTACT: Sgravi Benefits shipments of the subject merchandise Caratina L. Alston, United States from the producers/exporters under Comment 2: Benefit for Pasta Zara/Pasta Secretary, NAFTA Secretariat, Suite review that are entered, or withdrawn Zara 2’s First Law 908/55 Fondo di 2061, 14th and Constitution Avenue, from warehouse, for consumption on or Rotazione Iniziative Economiche Washington, DC 20230, (202) 482–5438. after the date of publication of the final (Revolving Fund for Economic SUPPLEMENTARY INFORMATION: Chapter results of this administrative review. For Initiatives) (‘‘FRIE’’) Loan 19 of the North American Free-Trade all non–reviewed firms (except Barilla Comment 3: Benefit for Pasta Zara 2’s Agreement (‘‘Agreement’’) establishes a G. e R. F.lli S.p.A. and Gruppo Second Law 908/55 FRIE Loan mechanism to replace domestic judicial Agricoltura Sana S.r.L., which are review of final determinations in [FR Doc. E4–3476 Filed 12–6–04; 8:45 am] excluded from the order), we will antidumping and countervailing duty instruct Customs to collect cash BILLING CODE: 3510–DS–P cases involving imports from the other deposits of estimated countervailing country with review by independent duties at the most recent company– binational panels. When a Request for specific or all–others rate applicable to Panel Review is filed, a panel is the company. These rates shall apply to established to act in place of national

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courts to review expeditiously the final surrogate benchmarks for Saskatchewan The new patent fees become effective determination to determine whether it and Manitoba. on the date the President signs the conforms with the antidumping or (12) If the Department’s benchmark Consolidated Appropriations Act. The countervailing duty law of the country calculations result in a higher benefit for fees will remain in effect during the that made the determination. Quebec or Ontario, the Department is remainder of fiscal year 2005 and during Under Article 1904 of the Agreement, directed to exclude additional sales that fiscal year 2006. The USPTO expects the which came into force on January 1, might erroneously be attributed to Bois Consolidated Appropriations Act to be 1994, the Government of the United Omega. signed by the President in December. States, the Government of Canada and The Investigating Authority is The patent maintenance fee changes the Government of Mexico established directed to complete its remand apply to any maintenance fee payment Rules of Procedure for Article 1904 determination by January 24, 2005. made on or after the date of enactment Binational Panel Reviews (‘‘Rules’’). Dated: December 2, 2004. of the Consolidated Appropriations Act, regardless of the filing or issue date of These Rules were published in the Caratina L. Alston, the patent for which the fee is Federal Register on February 23, 1994 United States Secretary, NAFTA Secretariat. (59 FR 8686). submitted. The revised maintenance Panel Decision: On December 1, 2004, [FR Doc. E4–3512 Filed 12–6–04; 8:45 am] fees take effect on the date the the Binational Panel remanded the BILLING CODE 3510–GT–P Consolidated Appropriations Act is Department of Commerce’s final signed by the President. For example, if countervailing duty determination on the President signs the Consolidated DEPARTMENT OF COMMERCE remand. The following issues were Appropriations Act at noon on remanded to the Department: Patent and Trademark Office December 8, 2004, any maintenance fee (1) The Department is directed to paid at any time on December 8, 2004, reinstate the C$3.46 profit figure in [Docket No. 2004–P–050] or thereafter, would be subject to the computing the log-seller profit in revised maintenance fee amounts set Alberta. Changes to Patent Fees Under the forth in the Consolidated (2) The Department is directed to Consolidated Appropriations Act, 2005 Appropriations Act, regardless of include in the Quebec benchmarks the AGENCY: United States Patent and whether the President signs the volume of logs for which the Syndicate Trademark Office, Commerce. Consolidated Appropriations Act before or after the payment is made. For this data does not indicate prices, or to ACTION: Notice. explain why it should not do so, or why reason, persons paying the second and it cannot do so. SUMMARY: If enacted in its present form, third maintenance fees may want to (3) The Department is directed to the Consolidated Appropriations Act, consider: (1) Authorizing payment of adjust the Quebec benchmarks by 2005 (Consolidated Appropriations any deficiency from a deposit account; deducting log-seller profit from both the Act), will revise patent fees in general, or (2) paying the maintenance fee with import and Syndicate prices. including maintenance fees, and will sufficient time remaining in the (4) The Department is directed to provide for a search fee and payment window to allow for a timely consider the conversion factor to be examination fee that are separate from payment of any fee deficiency due to the used to convert Syndicate prices in the filing fee, during fiscal years 2005 enactment of the Consolidated Quebec to cubic meters where the data and 2006. This notice provides advance Appropriations Act. This is especially is reported in other forms. notice to the public of the changes to important if paying via the USPTO’s (5) The Department is directed to patent fees in the Consolidated Internet Web site since there may be include Balsam Fir and Larch in the Appropriations Act. In particular, with some delay in updating maintenance fee Ontario SPF benchmark. respect to maintenance fees, this notice information on the USPTO’s Office of (6) The Department is directed to advises the public to remain vigilant as Finance On-Line Shopping Web page correct the clerical error in the import to the effective date of the Consolidated and maintenance fees must be timely statistics for Ontario which grossly Appropriations Act and to consider paid in the appropriate amount to avoid inflated the benchmark. paying maintenance fees early or taking expiration of a patent. (7) The Department is directed to other appropriate steps to ensure that The new basic filing fee (or national examine the issue of log-seller profit in their patents remain in force. fee), search fee, examination fee, and Ontario. If the Department determines application size fee will apply to FOR FURTHER INFORMATION CONTACT: The national patent applications filed on or that it is appropriate to use a surrogate Office of Patent Legal Administration, after the date of enactment of the profit figure from some other province, Office of the Deputy Commissioner for Consolidated Appropriations Act and to it is directed to explain its choice. Patent Examination Policy, by telephone (8) The Department is directed to international patent applications in at (571) 272–7701 or by electronic mail redetermine the net benefit for Ontario. which the basic national fee is paid on (9) The Department is directed to message over the Internet at or after the date of enactment. The filing recalculate the British Columbia [email protected]. fee (or national fee), search fee, and benchmark taking into account actual SUPPLEMENTARY INFORMATION: H.R. 4818, examination fee are due on filing. If the market conditions in that province. In the Consolidated Appropriations Act, filing fee (or national fee) is paid on so doing, the Department must perform 2005 (Consolidated Appropriations Act) filing, but the search fee and/or separate benefit calculations for the would, upon enactment, revise certain examination fee is missing, the USPTO Coast and for the Interior using data patent application and maintenance will issue a notice requiring that any available for each region. fees; provide separate fees for a basic missing search fee and examination fee (10) The Department is directed to filing fee, a search fee, and an (but no surcharge until further notice) apply recalculated profit figures for examination fee; and require an be paid within a specified period of Alberta and Quebec in calculating additional fee for any patent application time in order to avoid abandonment. British Columbia stumpage benefits. whose specification and drawings Thus, if at least the full basic filing fee (11) The Department is directed to exceed 100 sheets of paper (application in effect on the date of enactment of the eliminate the import data in the size fee). Consolidated Appropriations Act is paid

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on or after the date of enactment of the action on imports from China of other apparel safeguard action on imports Consolidated Appropriations Act, the synthetic filament fabric (Category 620). from China of other synthetic filament USPTO will issue a notice requiring any fabric (Category 620) on the ground that balance of the search fee and the SUMMARY: The Committee has received a an anticipated increase in imports of examination fee (but no surcharge). request from the National Council of other synthetic filament fabric after Since the changes to the patent fees Textile Organizations, the National January 1, 2005, threatens to disrupt the take effect on the date the Consolidated Textile Association, the American U.S. market for other synthetic filament Appropriations Act is signed by the Manufacturing Trade Action Coalition, fabric. For a list of the products President, there will be applications and UNITE HERE! (Requestors) asking included in Category 620, see ‘‘Textile the Committee to limit imports from filed on or after the effective date that Correlation’’ at http://otexa.ita.doc/ China of other synthetic filament fabric may not include the revised fees set corr.htm. The request is available at in accordance with the textile and forth in the Consolidated http://otexa.ita.doc.gov/ apparel safeguard provision of the Appropriations Act. For example, if the Safeguardlintro.htm. In light of the Working Party on the Accession of President signs the Consolidated considerations set forth in the China to the World Trade Organization Appropriations Act at noon on Procedures, the Committee has (the Accession Agreement). The December 8, 2004, any application filed determined that the Requestors have Committee hereby solicits public (before or after noon) on December 8, provided the information necessary for comments on this request. 2004, or thereafter, would be subject to the Committee to consider the request. FOR FURTHER INFORMATION CONTACT: the basic filing fee, search fee, Jay Dowling, Office of Textiles and Apparel, The Committee is soliciting public examination fee and the revised patent comments on the request, in particular application fees set forth in the U.S. Department of Commerce, (202) 482-4058. with regard to whether there is a threat Consolidated Appropriations Act. of disruption to the U.S. market for SUPPLEMENTARY INFORMATION: The remaining patent application fee other synthetic filament fabric and, if so, changes, including the excess claims Authority: Section 204 of the Agriculture the role of Chinese-origin other fees, extension of time fees, and appeal Act of 1956, as amended; Executive Order synthetic filament fabric in that fees, apply to any fee payment made on 11651, as amended. disruption. To this end, the Committee or after the date of enactment of the BACKGROUND: seeks relevant information addressing Consolidated Appropriations Act, The textile and apparel safeguard factors such as the following, which regardless of the filing date of the provision of the Accession Agreement may be relevant in the particular application for which the fee is provides for the United States and other circumstances of this case, involving a submitted. members of the World Trade product under a quota that will be The USPTO will post additional Organization that believe imports of removed on January 1, 2005: (1) information on its Internet Web site Chinese origin textile and apparel Whether imports of other synthetic (http://www.uspto.gov) as soon as products are, due to market disruption, filament fabric from China are entering, possible after enactment of the threatening to impede the orderly or are expected to enter, the United Consolidated Appropriations Act. development of trade in these products States at prices that are substantially USPTO customers should monitor the to request consultations with China below prices of the like or directly USPTO’s Internet Web site frequently with a view to easing or avoiding the competitive U.S. product, and whether for current patent fee information. disruption. Pursuant to this provision, if those imports are likely to have a Payments from foreign countries must the United States requests consultations significant depressing or suppressing be payable and immediately negotiable with China, it must, at the time of the effect on domestic prices of the like or in the United States for the full amount request, provide China with a detailed directly competitive U.S. product or are of the fee required. factual statement showing ‘‘(1) the likely to increase demand for further Dated: December 2, 2004. existence or threat of market disruption; imports from China; (2) Whether exports Jon W. Dudas, and (2) the role of products of Chinese of Chinese-origin other synthetic Under Secretary of Commerce for Intellectual origin in that disruption.’’ Beginning on filament fabric to the United States are Property and Director of the United States the date that it receives such a request, likely to increase substantially and Patent and Trademark Office. China must restrict its shipments to the imminently (due to existing unused [FR Doc. 04–26853 Filed 12–3–04; 9:45 am] United States to a level no greater than production capacity, to capacity that BILLING CODE 3510–16–P 7.5 percent (6 percent for wool product can easily be shifted from the categories) above the amount entered production of other products to the during the first 12 months of the most production of other synthetic filament recent 14 months preceding the request. fabric, or to an imminent and COMMITTEE FOR THE If exports from China exceed that substantial increase in production IMPLEMENTATION OF TEXTILE amount, the United States may enforce capacity or investment in production AGREEMENTS the restriction. capacity), taking into account the The Committee has published availability of other markets to absorb Solicitation of Public Comments on procedures (the Procedures) it follows any additional exports; (3) Whether Request for Textile and Apparel in considering requests for Accession Chinese-origin other synthetic filament Safeguard Action on Imports from Agreement textile and apparel safeguard fabric that is presently sold in the China actions (68 FR 27787, May 21, 2003; 68 Chinese market or in third-country FR 49440, August 18, 2003), including markets will be diverted to the U.S. December 2, 2004. the information that must be included market in the imminent future (for AGENCY: The Committee for the in such requests in order for the example, due to more favorable pricing Implementation of Textile Agreements Committee to consider them. in the U.S. market or to existing or (the Committee) On November 8, 2004, the Requestors imminent import restraints into third ACTION: Solicitation of public comments asked the Committee to impose an country markets); (4) The level and the concerning a request for safeguard Accession Agreement textile and extent of any recent change in

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inventories of other synthetic filament threaten to disrupt the U.S. market, the DEPARTMENT OF EDUCATION fabric in China or in U.S. bonded United States will request consultations warehouses; (5) Whether conditions of with China with a view to easing or Submission for OMB Review; the domestic industry of the like or avoiding the disruption. Comment Request directly competitive product demonstrate that market disruption is James C. Leonard III, AGENCY: Department of Education. likely (as may be evident from any Chairman, Committee for the Implementation SUMMARY: The Leader, Information of Textile Agreements. anticipated factory closures or decline Management Case Services Team, in investment in the production of other [FR Doc. E4–3530 Filed 12–6–04; 8:45 am] Regulatory Information Management synthetic filament fabric, and whether BILLING CODE 3510–DS–S Services, Office of the Chief Information actual or anticipated imports of Officer invites comments on the Chinese-origin other synthetic filament fabric are likely to affect the submission for OMB review as required by the Paperwork Reduction Act of development and production efforts of DEPARTMENT OF DEFENSE the U.S. other synthetic fabric industry; 1995. and (6) Whether U.S. managers, Department of the Army DATES: Interested persons are invited to retailers, purchasers, importers, or other submit comments on or before January market participants have recognized Availability of U.S. Patent and U.S. 7, 2004. Chinese producers of other synthetic Patent Applications for Non-Exclusive, filament fabric as potential suppliers Exclusive, or Partially Exclusive ADDRESSES: Written comments should (for example, through pre-qualification Licensing be addressed to the Office of procedures or framework agreements). Information and Regulatory Affairs, Comments may be submitted by any AGENCY: Department of the Army, DoD. Attention: Carolyn Lovett, Desk Officer, interested person. Comments must be ACTION: Notice of availability. Department of Education, Office of received no later than January 6, 2005. Management and Budget, 725 17th Interested persons are invited to submit Street, NW., Room 10235, New ten copies of such comments to the SUMMARY: In accordance with 35 U.S.C. Executive Office Building, Washington, Chairman, Committee for the 209 and 37 CFR part 404 announcement DC 20503 or faxed to (202) 395–6974. Implementation of Textile Agreements, is made of the availability for licensing Room 3001A, U.S. Department of of the U.S. Patent Applications and U.S. SUPPLEMENTARY INFORMATION: Section Commerce, 14th and Constitution Patent for non-exclusive, exclusive, or 3506 of the Paperwork Reduction Act of Avenue N.W., Washington, DC 20230. partially exclusive licensing listed 1995 (44 U.S.C. Chapter 35) requires The Committee will protect any under SUPPLEMENTARY INFORMATION. The that the Office of Management and business confidential information that is invention listed has been assigned to the Budget (OMB) provide interested marked ‘‘business confidential’’ from United States Government as Federal agencies and the public an early disclosure to the full extent permitted represented by the Secretary of the opportunity to comment on information by law. To the extent that business Army, Washington, DC. collection requests. OMB may amend or confidential information is provided, waive the requirement for public two copies of a non-confidential version FOR FURTHER INFORMATION CONTACT: Mr. must also be provided in which John Biffoni, Intellectual Property consultation to the extent that public business confidential information is attorney, U.S. Army Research, participation in the approval process summarized or, if necessary, deleted. Development, and Engineering would defeat the purpose of the Comments received, with the exception Command, Attn: AMSRD–CC (Bldg. information collection, violate State or of information marked ‘‘business E4435), Aberdeen Proving Ground, MD Federal law, or substantially interfere confidential’’, will be available for 21010–5424, phone: (410) 436–1158: with any agency’s ability to perform its inspection between Monday - Friday, fax: 410–436–2534 or e-mail: statutory obligations. The Leader, 8:30 a.m and 5:30 p.m in the Trade [email protected]. Information Management Case Services Reference and Assistance Center Help Team, Regulatory Information Desk, Suite 800M, USA Trade SUPPLEMENTARY INFORMATION: Management Services, Office of the Information Center, Ronald Reagan 1. Title: ‘‘Collapsing and Telescoping Chief Information Officer, publishes that Building, 1300 Pennsylvania Avenue, Baffles for Stirred Vessels.’’ notice containing proposed information NW, Washington, DC, (202) 482-3433. collection requests prior to submission The Committee will make a Description: The present invention of these requests to OMB. Each determination within 60 calendar days relates to the field of baffles for use in proposed information collection, of the close of the comment period as stirred vessels, such as reaction grouped by office, contains the to whether the United States will calorimeters. Specifically, the invention following: (1) Type of review requested, request consultations with China. If the is a set of removable baffles, forming a e.g. new, revision, extension, existing or Committee is unable to make a system which need not be manufactured reinstatement; (2) title; (3) summary of determination within 60 calendar days, with the vessel itself. Due to its it will cause to be published a notice in the collection; (4) description of the construction, the baffle system of this need for, and proposed use of, the the Federal Register, including the date invention is removable and replaceable. by which it will make a determination. information; (5) respondents and If the Committee makes a negative Patent Number: 6,769,800. frequency of collection; and (6) determination, it will cause this Issue Date: August 3, 2004. reporting and/or recordkeeping burden. determination and the reasons therefore OMB invites public comment. Brenda S. Bowen, to be published in the Federal Register. If the Committee makes an affirmative Army Federal Register Liaison Officer. determination that imports of Chinese [FR Doc. 04–26804 Filed 12–6–04; 8:45 am] origin other synthetic filament fabric BILLING CODE 3710–08–M

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Dated: November 30, 2004. DATE AND TIME: Tuesday, December 14, Alliance requests that the Angela C. Arrington, 2004, 10 a.m.–12 Noon. Commission amend the Presidential Leader, Information Management Case PLACE: U.S. Election Assistance Permit to reflect the actual peak day Services Team, Regulatory Information Commission, 1225 New York Ave., NW., capacity, a flow which could occur in Management Services, Office of the Chief Suite 1100, Washington, DC 20005. very limited circumstances, of 1.875 Information Officer. (Metro Stop: Metro Center.) Bcfd, inclusive of fuel, for the Office of the Undersecretary AGENDA: The Commission will receive authorized border-crossing facilities. No new rates or rate schedules are Type of Review: New. updates and reports on the following: proposed. The facilities will continue to Title: Study of Single Sex Schools. Title II Requirements Payments; Budget Frequency: One time. Update; EAC’s 2005 HAVA provide improved access to supplies of Affected Public: State, local, or tribal Implementation Action Plan; Other natural gas and improve the gov’t, SEAs or LEAs. Programmatic Updates and dependability of international energy Reporting and Recordkeeping Hour Administrative Matters. trade. No changes are proposed to the currently authorized facilities. Burden: PERSON TO CONTACT FOR INFORMATION: Responses: 1,280. Questions regarding the application Bryan Whitener, Telephone: (202) 566– Burden Hours: 1,088. may be directed to: Dennis Prince, Vice 3100. Abstract: The purpose of the Study of President, Transportation Services and Single Sex Schools is to describe what Gracia M. Hillman, Business Development, Alliance is currently known about the Vice-Chair, U.S. Election Assistance Pipeline L.P., 6385 Old Shady Oak characteristics and effects of single sex Commission. Road, Eden Prairie, Minnesota 55344– schooling on student achievement and [FR Doc. 04–26947 Filed 12–3–04; 12:37 pm] 3252 or call (952) 983–1000; and, other outcomes, especially for at-risk BILLING CODE 6820–YN–M William A. Williams and James P. White students. Data collection includes at Fulbright & Jaworski L.L.P., Market surveys of teachers and principals at all Square, 801 Pennsylvania Avenue, NW., existing single sex schools (n=18), and DEPARTMENT OF ENERGY Washington, DC 20004–2604 or call site visit interviews and observations at (202) 662–0200. a sample of 6 single sex schools and six Federal Energy Regulatory There are two ways to become matched comparison schools Commission involved in the Commission’s review of (coeducational). this project. First, any person wishing to [Docket No. CP97–169–004] Requests for copies of the submission obtain legal status by becoming a party for OMB review; comment request may to the proceedings for this project be accessed from http:// Alliance Pipeline L.P.; Notice of Application should, on or before the comment date edicsweb.ed.gov, by selecting the below, file with the Federal Energy ‘‘Browse Pending Collections’’ link and December 1, 2004. Regulatory Commission, 888 First by clicking on link number 2617. When On November 23, 2004, Alliance Street, NE., Washington, DC 20426, a you access the information collection, Pipeline L.P. (Alliance), pursuant to motion to intervene in accordance with click on ‘‘Download Attachments’’ to section 3 of the Natural Gas Act (NGA), the requirements of the Commission’s view. Written requests for information and Subparts B and C of Part 153 of the Rules of Practice and Procedure (18 CFR should be addressed to U.S. Department Federal Energy Regulatory 385.214 or 385.211) and the Regulations of Education, 400 Maryland Avenue, Commission’s (Commission) regulations under the NGA (18 CFR 157.10). A SW., Potomac Center, 9th Floor, under the NGA filed an application to person obtaining party status will be Washington, DC 20202–4700. Requests amend its Presidential Permit (Permit) placed on the service list maintained by may also be electronically mailed to the _ to reflect the actual peak day capacity of the Secretary of the Commission and Internet address OCIO [email protected] or the authorized border-crossing facilities will receive copies of all documents faxed to (202) 245–6621. Please specify between the United States and Canada. filed by the applicant and by all other the complete title of the information The current Permit, issued on June 13, parties. A party must submit 14 copies collection when making your request. 2002, 99 FERC 61,313 (2002), indicates of filings made with the Commission Comments regarding burden and/or a peak capacity of 1.8 Billion cubic feet and must mail a copy to the applicant the collection activity requirements per day (Bcfd). The proposed and to every other party in the should be directed to Katrina Ingalls at amendment would have the Permit proceeding. Only parties to the her e-mail address reflect actual operating experience and proceeding can ask for court review of [email protected]. Individuals who results of recent engineering analyses Commission orders in the proceeding. use a telecommunications device for the not currently reflected in the Permit, all However, a person does not have to deaf (TDD) may call the Federal as more fully set forth in the intervene in order to have comments Information Relay Service (FIRS) at 1– application, which is on file with the considered. The second way to 800–877–8339. Commission, and open for public participate is by filing with the [FR Doc. E4–3475 Filed 12–6–04; 8:45 am] inspection. This filing is available for Secretary of the Commission, as soon as BILLING CODE 4000–01–P review at the Commission or may be possible, an original and two copies of viewed on the Commission’s Web site at comments in support of or in opposition http://www.ferc.gov, using the to this project. The Commission will ELECTION ASSISTANCE COMMISSION ‘‘eLibrary’’ link. Enter the docket consider these comments in number excluding the last three digits in determining the appropriate action to be Sunshine Act Notice the docket number field to access the taken, but the filing of a comment alone AGENCY: Election Assistance document. For assistance, please contact will not serve to make the filer a party Commission. FERC Online Support at to the proceeding. The Commission’s [email protected] or toll- rules require that persons filing ACTION: Notice of public meeting free at (866) 208–3676, or for TTY, comments in opposition to the project agenda. contact (202) 502–8659. provide copies of their protests only to

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the party or parties directly involved in 888 First Street, NE., Washington, DC before the intervention or protest date the protest. 20426. need not serve motions to intervene or Comments, protests and interventions This filing is accessible on-line at protests on persons other than the may be filed electronically via the http://www.ferc.gov, using the Applicant. Internet in lieu of paper; see 18 CFR ‘‘eLibrary’’ link and is available for The Commission encourages 385.2001(a)(1)(iii) and the instructions review in the Commission’s Public electronic submission of protests and on the Commission’s Web site under the Reference Room in Washington, DC. interventions in lieu of paper using the ‘‘e-Filing’’ link. There is an ‘‘eSubscription’’ link on the ‘‘eFiling’’ link at http://www.ferc.gov. Comment Date: December 21, 2004. Web site that enables subscribers to Persons unable to file electronically receive e-mail notification when a should submit an original and 14 copies Magalie R. Salas, document is added to a subscribed of the protest or intervention to the Secretary. docket(s). For assistance with any FERC Federal Energy Regulatory Commission, [FR Doc. E4–3503 Filed 12–6–04; 8:45 am] Online service, please e-mail 888 First Street, NE., Washington, DC BILLING CODE 6717–01–P [email protected], or call 20426. (866) 208–3676 (toll free). For TTY, call This filing is accessible on-line at (202) 502–8659. http://www.ferc.gov, using the DEPARTMENT OF ENERGY ‘‘eLibrary’’ link and is available for Magalie R. Salas, review in the Commission’s Public Federal Energy Regulatory Secretary. Reference Room in Washington, DC. Commission [FR Doc. E4–3496 Filed 12–6–04; 8:45 am] There is an ‘‘eSubscription’’ link on the BILLING CODE 6717–01–P Web site that enables subscribers to [Docket No. RP99–301–123] receive e-mail notification when a document is added to a subscribed ANR Pipeline Company; Notice of DEPARTMENT OF ENERGY docket(s). For assistance with any FERC Negotiated Rate Filing Federal Energy Regulatory Online service, please e-mail November 30, 2004. Commission [email protected], or call Take notice that on November 24, (866) 208–3676 (toll free). For TTY, call 2004, ANR Pipeline Company (ANR) [Docket No. RP96–200–134] (202) 502–8659. tendered for filing and approval an CenterPoint Energy Gas Transmission Magalie R. Salas, amendment to an existing tariff sheet Company; Notice of Negotiated Rate Secretary. implementing a negotiated rate Filing [FR Doc. E4–3502 Filed 12–6–04; 8:45 am] agreement between ANR and the BILLING CODE 6717–01–P Apache Corporation. December 1, 2004. ANR requests that the Commission Take notice that on November 22, accept and approve the subject tariff 2004, CenterPoint Energy Gas DEPARTMENT OF ENERGY sheet to be effective December 1, 2004. Transmission Company (CEGT) Any person desiring to intervene or to tendered for filing and approval a Federal Energy Regulatory protest this filing must file in negotiated rate agreement between Commission accordance with Rules 211 and 214 of CEGT and TPS Dell, L.L.C. CEGT states [Docket No. RP91–161–033] the Commission’s Rules of Practice and that it has entered into an amended firm Procedure (18 CFR 385.211 and service agreement to provide service to Columbia Gas Transmission 385.214). Protests will be considered by this Shipper to be effective January 1, Corporation; Notice of Refund Report the Commission in determining the 2005. appropriate action to be taken, but will CEGT states it also tendered for filing November 30, 2004. not serve to make protestants parties to as part of its FERC Gas Tariff, Sixth Take notice that on November 19, the proceeding. Any person wishing to Revised Volume No. 1, First Revised 2004, Columbia Gas Transmission become a party must file a notice of Sheet No. 879, to be effective January 1, Corporation (Columbia) tendered for intervention or motion to intervene, as 2005. filing its report on the flow-back to appropriate. Such notices, motions, or Any person desiring to intervene or to customers of funds received from protests must be filed in accordance protest this filing must file in insurance carriers for environmental with the provisions of section 154.210 accordance with Rules 211 and 214 of costs attributable to Columbia’s Docket of the Commission’s regulations (18 CFR the Commission’s Rules of Practice and No. RP91–161 settlement period. 154.210). Anyone filing an intervention Procedure (18 CFR 385.211 and Any person desiring to protest this or protest must serve a copy of that 385.214). Protests will be considered by filing must file in accordance with Rule document on the Applicant. Anyone the Commission in determining the 211 of the Commission’s Rules of filing an intervention or protest on or appropriate action to be taken, but will Practice and Procedure (18 CFR before the intervention or protest date not serve to make protestants parties to 385.211). Protests to this filing will be need not serve motions to intervene or the proceeding. Any person wishing to considered by the Commission in protests on persons other than the become a party must file a notice of determining the appropriate action to be Applicant. intervention or motion to intervene, as taken, but will not serve to make The Commission encourages appropriate. Such notices, motions, or protestants parties to the proceeding. electronic submission of protests and protests must be filed in accordance Such protests must be filed on or before interventions in lieu of paper using the with the provisions of section 154.210 the date as indicated below. Anyone ‘‘eFiling’’ link at http://www.ferc.gov. of the Commission’s regulations (18 CFR filing a protest must serve a copy of that Persons unable to file electronically 154.210). Anyone filing an intervention document on all the parties to the should submit an original and 14 copies or protest must serve a copy of that proceeding. of the protest or intervention to the document on the Applicant. Anyone The Commission encourages Federal Energy Regulatory Commission, filing an intervention or protest on or electronic submission of protests in lieu

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of paper using the ‘‘eFiling’’ link at review at the Commission in the Public placed on the Commission’s http://www.ferc.gov. Persons unable to Reference Room or may be viewed on environmental mailing list, will receive file electronically should submit an the Commission’s Web site at http:// copies of the environmental documents, original and 14 copies of the protest to www.ferc.gov using the ‘‘e-Library’’ link. and will be notified of meetings the Federal Energy Regulatory Enter the docket number excluding the associated with the Commission’s Commission, 888 First Street, NE., last three digits in the docket number environmental review process. Washington, DC 20426. field to access the document. For Environmental commenters will not be This filing is accessible on-line at assistance, contact FERC at required to serve copies of filed http://www.ferc.gov, using the [email protected] or call documents on all other parties. ‘‘eLibrary’’ link and is available for toll-free, (866) 208–3676, or for TTY, However, the non-party commenters review in the Commission’s Public (202) 502–8659. will not receive copies of all documents Reference Room in Washington, DC. Any questions regarding this filed by other parties or issued by the There is an ‘‘eSubscription’’ link on the application should be directed to Jay Commission (except for the mailing of Web site that enables subscribers to Burack, MultiFuels LP, 6363 Woodway, environmental documents issued by the receive e-mail notification when a Suite 415, Houston, TX 77057, phone Commission) and will not have the right document is added to a subscribed (832) 251–8750, or G. Mark Cook Baker to seek court review of the docket(s). For assistance with any FERC Botts L.L.P., The Warner, 1299 Commission’s final order. Online service, please e-mail Pennsylvania Ave., NW., Washington, Protests and interventions may be [email protected], or call DC 20004–2400, phone (202) 639–7700. filed electronically via the Internet in (866) 208–3676 (toll free). For TTY, call There are two ways to become lieu of paper; see, 18 CFR (202) 502–8659. involved in the Commission’s review of 385.2001(a)(1)(iii) and the instructions Comment Date: 5 p.m. eastern time on this project. First, any person wishing to on the Commission’s web site under the December 7, 2004. obtain legal status by becoming a party ‘‘e-Filing’’ link. The Commission to the proceedings for this project strongly encourages electronic filings. Magalie R. Salas, should, on or before the comment date Comment Date: December 20, 2004. Secretary. stated below file with the Federal [FR Doc. E4–3492 Filed 12–6–04; 8:45 am] Energy Regulatory Commission, 888 Magalie R. Salas, BILLING CODE 6717–01–P First Street, NE., Washington, DC 20426, Secretary. a motion to intervene in accordance [FR Doc. E4–3482 Filed 12–6–04; 8:45 am] with the requirements of the BILLING CODE 6717–01–P DEPARTMENT OF ENERGY Commission’s Rules of Practice and Procedure (18 CFR 385.214 or 385.211) Federal Energy Regulatory and the Regulations under the NGA (18 DEPARTMENT OF ENERGY Commission CFR 157.10). A person obtaining party status will be placed on the service list Federal Energy Regulatory [Docket Nos. CP05–29–000, CP05–30–000, Commission CP05–31–000] maintained by the Secretary of the Commission and will receive copies of [Docket No. RP05–88–000] Freebird Gas Storage, LLC.; Notice of all documents filed by the applicant and Application by all other parties. A party must submit Iroquois Gas Transmission System, 14 copies of filings made in the L.P.; Notice of Proposed Change To November 29, 2004. proceeding with the Commission and FERC Gas Tariff On November 18, 2004, Freebird Gas must mail a copy to the applicant and Storage LLC (Freebird) filed an to every other party. Only parties to the November 30, 2004. application pursuant to section 7(c) of proceeding can ask for court review of Take notice that on November 23, the Natural Gas Act and Parts 284 and Commission orders in the proceeding. 2004, Iroquois Gas Transmission 157 of the regulations of the Federal However, a person does not have to System, L.P. (Iroquois) tendered for Energy Regulatory Commission intervene in order to have comments filing the following revised sheets to its (Commission) requesting: (1) A considered. The second way to FERC Gas Tariff, First Revised Volume certificate of public convenience and participate is by filing with the No. 1, to be effective on December 23, necessity authorizing Freebird to Secretary of the Commission, as soon as 2004: acquire, own and operate the existing possible, an original and two copies of First Revised Sheet No. 0 East Detroit Storage Facility in Lamar comments in support of or in opposition First Revised Sheet No. 2 County, Alabama, and to construct, own to this project. The Commission will First Revised Sheet No. 10A and operate expanded facilities that will consider these comments in First Revised Sheet No. 33A accommodate the injection, storage, and determining the appropriate action to be Sixth Revised Sheet No. 51 withdrawal of natural gas for redelivery Third Revised Sheet No. 61 taken, but the filing of a comment alone Fourth Revised Sheet No. 63 in interstate commerce; (2) a 284 blanket will not serve to make the filer a party First Revised Sheet No. 65B certificate to provided open-access firm to the proceeding. The Commission’s Third Revised Sheet No. 141 and interruptible storage services on be rules require that persons filing Fourth Revised Sheet No. 145 half of others in interstate commerce, comments in opposition to the project Third Revised Sheet No. 149 with pre-granted abandonment of such provide copies of their protests only to Fifth Revised Sheet No. 153 services; (3) a 157 blanket certificate to the party or parties directly involved in Second Revised Sheet No. 156 construct, acquire, operate, rearrange the protest. Fourth Revised Sheet No. 159 and abandon certain facilities; (4) Persons who wish to comment only Fifth Revised Sheet No. 164 Fourth Revised Sheet No. 171 authorization to provide proposed on the environmental review of this Fourth Revised Sheet No. 172 services at market-based rates; and (5) project should submit an original and Third Revised Sheet No. 175 approval of the pro forma FERC Gas two copies of their comments to the Sixth Revised Sheet No. 181 Tariff contained in Exhibit of the Secretary of the Commission. Seventh Revised Sheet No. 185 application. This filing is available for Environmental commenters will be Third Revised Sheet No. 190

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Second Revised Sheet No. 191 (866) 208–3676 (toll free). For TTY, call ‘‘eLibrary’’ link and is available for Third Revised Sheet No. 192 (202) 502–8659. review in the Commission’s Public Second Revised Sheet No. 193 Reference Room in Washington, DC. Magalie R. Salas, There is an ‘‘eSubscription’’ link on the Iroquois states that on a periodic basis Secretary. Web site that enables subscribers to it reviews the provisions in its tariff for [FR Doc. E4–3491 Filed 12–6–04; 8:45 am] receive e-mail notification when a consistency and sentence syntax. BILLING CODE 6717–01–P document is added to a subscribed Iroquois explains that during a recent docket(s). For assistance with any FERC review, it identified grammatical and Online service, please e-mail DEPARTMENT OF ENERGY non substantive corrective changes or [email protected], or call ‘‘housekeeping’’ issues. Iroquois asserts Federal Energy Regulatory (866) 208–3676 (toll free). For TTY, call that the majority of these changes reflect Commission (202) 502–8659. recent internal staff restructuring. Magalie R. Salas Iroquois Gas Transmission System, Iroquois states that copies of its filing Secretary. were served on all jurisdictional L.P.; Notice of Compliance Filing [FR Doc. E4–3495 Filed 12–6–04; 8:45 am] customers and interested state November 30, 2004. BILLING CODE 6717–01–P regulatory agencies and all parties to the Take notice that on November 19, proceeding. 2004, Iroquois Gas Transmission Any person desiring to intervene or to System, L.P. (Iroquois) tendered for DEPARTMENT OF ENERGY protest this filing must file in filing as part of its FERC Gas Tariff, First accordance with Rules 211 and 214 of Revised Volume No. 1, First Substitute Federal Energy Regulatory the Commission’s Rules of Practice and Original Sheet No. 6F, to be effective on Commission Procedure (18 CFR 385.211 and October 8, 2004. 385.214). Protests will be considered by Iroquois states that the filing is being [Docket No. ES04–39–001] the Commission in determining the made to comply with the Commission’s order issued November 5, 2004 (109 ISO New England, Inc.; Notice of Filing appropriate action to be taken, but will ¶FERC 61,150) and reflects the period of not serve to make protestants parties to service under two negotiated rate November 30, 2004. the proceeding. Any person wishing to agreements with Consolidated Edison Take notice that on November 19, become a party must file a notice of Company of New York, Inc. 2004, ISO New England, Inc. (ISO–New intervention or motion to intervene, as (Consolidated Edison). Iroquois requests England) filed an application pursuant appropriate. Such notices, motions, or a waiver of the 30-day notice to section 204 of the Federal Power Act. protests must be filed in accordance requirement to permit the tariff sheet to The application requests that the with the provisions of section 154.210 take effect on October 8, 2004, the date Commission amend the authorization to of the Commission’s regulations (18 CFR the negotiated rate agreements with issue senior notes previously granted on 154.210). Anyone filing an intervention Consolidated Edison took effect. July 15, 2004, in Docket No. ES04–39– or protest must serve a copy of that Iroquois states that copies of its filing 000, to permit ISO–New England to use document on the Applicant. Anyone were served on all jurisdictional proceeds from the borrowings for filing an intervention or protest on or customers and interested state general public utility purposes, before the intervention or protest date regulatory agencies and all parties to the including the fund working capital. need not serve motions to intervene or proceeding. Any person desiring to intervene or to protests on persons other than the Any person desiring to protest this protest this filing must file in Applicant. filing must file in accordance with Rule accordance with Rules 211 and 214 of 211 of the Commission’s Rules of the Commission’s Rules of Practice and The Commission encourages Practice and Procedure (18 CFR Procedure (18 CFR 385.211 and electronic submission of protests and 385.211). Protests to this filing will be 385.214). Protests will be considered by interventions in lieu of paper using the considered by the Commission in the Commission in determining the ‘‘eFiling’’ link at http://www.ferc.gov. determining the appropriate action to be appropriate action to be taken, but will Persons unable to file electronically taken, but will not serve to make not serve to make protestants parties to should submit an original and 14 copies protestants parties to the proceeding. the proceeding. Any person wishing to of the protest or intervention to the Such protests must be filed in become a party must file a notice of Federal Energy Regulatory Commission, accordance with the provisions of intervention or motion to intervene, as 888 First Street, NE., Washington, DC Section 154.210 of the Commission’s appropriate. Such notices, motions, or 20426. regulations (18 CFR 154.210). Anyone protests must be filed on or before the This filing is accessible on-line at filing a protest must serve a copy of that comment date. Anyone filing a motion to intervene or protest must serve a copy http://www.ferc.gov, using the document on all the parties to the of that document on all the parties to ‘‘eLibrary’’ link and is available for proceeding. The Commission encourages the proceeding. review in the Commission’s Public electronic submission of protests in lieu The Commission encourages Reference Room in Washington, DC. of paper using the ‘‘eFiling’’ link at electronic submission of protests and There is an ‘‘eSubscription’’ link on the http://www.ferc.gov. Persons unable to interventions in lieu of paper using the Web site that enables subscribers to file electronically should submit an ‘‘eFiling’’ link at http://www.ferc.gov. receive e-mail notification when a original and 14 copies of the protest to Persons unable to file electronically document is added to a subscribed the Federal Energy Regulatory should submit an original and 14 copies docket(s). For assistance with any FERC Commission, 888 First Street, NE., of the protest or intervention to the Online service, please e-mail Washington, DC 20426. Federal Energy Regulatory Commission, [email protected], or call This filing is accessible on-line at 888 First Street, NE., Washington, DC http://www.ferc.gov, using the 20426.

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This filing is accessible on-line at the proceeding. Any person wishing to Northern further states that copies of http://www.ferc.gov, using the become a party must file a notice of the filing have been mailed to each of ‘‘eLibrary’’ link and is available for intervention or motion to intervene, as its customers and interested State review in the Commission’s Public appropriate. Such notices, motions, or Commissions. Reference Room in Washington, DC. protests must be filed on or before the Any person desiring to protest this There is an ‘‘eSubscription’’ link on the date as indicated below. Anyone filing filing must file in accordance with Rule Web site that enables subscribers to an intervention or protest must serve a 211 of the Commission’s Rules of receive e-mail notification when a copy of that document on the Applicant. Practice and Procedure (18 CFR document is added to a subscribed Anyone filing an intervention or protest 385.211). Protests to this filing will be docket(s). For assistance with any FERC on or before the intervention or protest considered by the Commission in Online service, please e-mail date need not serve motions to intervene determining the appropriate action to be [email protected], or call or protests on persons other than the taken, but will not serve to make (866) 208–3676 (toll free). For TTY, call Applicant. protestants parties to the proceeding. (202) 502–8659. The Commission encourages Such protests must be filed in Comment Date: 5 p.m. eastern time on electronic submission of protests and accordance with the provisions of December 10, 2004. interventions in lieu of paper using the Section 154.210 of the Commission’s ‘‘eFiling’’ link at http://www.ferc.gov. regulations (18 CFR 154.210). Anyone Magalie R. Salas, Persons unable to file electronically filing a protest must serve a copy of that Secretary. should submit an original and 14 copies document on all the parties to the [FR Doc. E4–3484 Filed 12–6–04; 8:45 am] of the protest or intervention to the proceeding. BILLING CODE 6717–01–P Federal Energy Regulatory Commission, The Commission encourages 888 First Street, NE., Washington, DC electronic submission of protests in lieu 20426. of paper using the ‘‘eFiling’’ link at DEPARTMENT OF ENERGY This filing is accessible on-line at http://www.ferc.gov. Persons unable to Federal Energy Regulatory http://www.ferc.gov, using the file electronically should submit an Commission ‘‘eLibrary’’ link and is available for original and 14 copies of the protest to review in the Commission’s Public the Federal Energy Regulatory [Docket No. RP05–85–000] Reference Room in Washington, DC. Commission, 888 First Street, NE., There is an ‘‘eSubscription’’ link on the Washington, DC 20426. North Baja Pipeline, LLC; Notice of Web site that enables subscribers to This filing is accessible on-line at Limited Case-Specific Waiver receive e-mail notification when a http://www.ferc.gov, using the November 30, 2004. document is added to a subscribed ‘‘eLibrary’’ link and is available for Take notice that on November 19, docket(s). For assistance with any FERC review in the Commission’s Public 2004, North Baja Pipeline, LLC, (NBP) Online service, please e-mail Reference Room in Washington, DC. and MGI Supply Ltd., (MGI) tendered [email protected], or call There is an ‘‘eSubscription’’ link on the for filing a joint petition for a limited (866) 208–3676 (toll free). For TTY, call Web site that enables subscribers to case specific waiver and a request for (202) 502–8659. receive e-mail notification when a expedited consideration of the Comment Date: 5 p.m. eastern time on document is added to a subscribed competitive bidding procedures of December 7, 2004. docket(s). For assistance with any FERC Online service, please e-mail NBP’s capacity release tariff in order to Magalie R. Salas, allow an assignment of MGI’s firm [email protected], or call Secretary. (866) 208–3676 (toll free). For TTY, call capacity rights following the outcome of [FR Doc. E4–3490 Filed 12–6–04; 8:45 am] a Request For Proposal (RFP) procedure (202) 502–8659. BILLING CODE 6717–01–P to be conducted by the Mexican Magalie R. Salas, Comision Federal de Electricidad (CFE). Secretary. In particular, NBP and MGI are DEPARTMENT OF ENERGY [FR Doc. E4–3488 Filed 12–6–04; 8:45 am] requesting an expedited grant of a BILLING CODE 6717–01–P limited case-specific waiver of the Federal Energy Regulatory competitive bidding requirement Commission contained in section 284.8 of the [Docket No. RP05–17–001] DEPARTMENT OF ENERGY Commission’s regulations. NBP and MGI request that the waiver be granted Northern Natural Gas Company; Notice Federal Energy Regulatory in advance of an RFP procedure to be of Compliance Filing Commission conducted by the CFE, in order to allow [Docket No. RP05–48–001] MGI to assign all or a portion of its long- November 30, 2004. term firm negotiated rate capacity to Take notice that on November 19, Northern Natural Gas Company; Notice suppliers who successfully bid to 2004, Northern Natural Gas Company of Compliance Filing supply LNG to certain CFE generation (Northern) tendered for filing as part of plants. its FERC Gas Tariff, Fifth Revised November 30, 2004. Any person desiring to intervene or to Volume No. 1, Substitute Third Revised Take notice that on November 24, protest this filing must file in Sheet No. 403, with an effective date of 2004, Northern Natural Gas Company accordance with Rules 211 and 214 of November 7, 2004. (Northern) in compliance with the the Commission’s Rules of Practice and Northern states that it is filing the Commission’s November 19, 2004, Procedure (18 CFR 385.211 and above-referenced tariff sheet in Letter Order in the above referenced 385.214). Protests will be considered by compliance with the Commission’s docket, tendered for filing an the Commission in determining the order related to certain components of explanation of why it did not propose appropriate action to be taken, but will Northern’s pro forma service a permanent tariff change related to its not serve to make protestants parties to agreements. October 29, 2004, request for a waiver

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of its FERC Gas Tariff, Fifth Revised report of environmental proceeds DEPARTMENT OF ENERGY Volume No. 1. received from third-party insurers. Federal Energy Regulatory Northern further states that copies of Southern Star states that it is filing its Commission the filing have been mailed to each of report of third-party insurance proceeds its customers and interested state received during the twelve months commissions. [Docket No. RP95–136–020] Any person desiring to protest this ended September 30, 2004. Southern filing must file in accordance with Rule Star further states that because it Southern Star Central Gas Pipeline, 211 of the Commission’s Rules of received no environmental proceeds Inc.; Notice of Refund Report Practice and Procedure (18 CFR during this twelve-month period, there 385.211). Protests to this filing will be will be no refunds made this year. November 30, 2004. considered by the Commission in Southern Star states that copies of the Take notice that, on November 18, determining the appropriate action to be filing were served on parties on the 2004, Southern Star Central Gas taken, but will not serve to make official service list in the above- Pipeline, Inc. (Southern Star) tendered protestants parties to the proceeding. captioned proceeding. for filing its interruptible excess refund Such protests must be filed in report for the twelve-month period Any person desiring to protest this accordance with the provisions of ending September 2004. filing must file in accordance with Rule Section 154.210 of the Commission’s 211 of the Commission’s Rules of Southern Star states that copies of the regulations (18 CFR 154.210). Anyone filing were served on all jurisdictional filing a protest must serve a copy of that Practice and Procedure (18 CFR 385.211). Protests to this filing will be customers and interested state document on all the parties to the commissions, as well as, all parties on proceeding. considered by the Commission in determining the appropriate action to be the Commission’s official service list in The Commission encourages this proceeding. electronic submission of protests in lieu taken, but will not serve to make of paper using the ‘‘eFiling’’ link at protestants parties to the proceeding. Any person desiring to protest this http://www.ferc.gov. Persons unable to Such protests must be filed on or before filing must file in accordance with Rule file electronically should submit an the date as indicated below. Anyone 211 of the Commission’s Rules of original and 14 copies of the protest to filing a protest must serve a copy of that Practice and Procedure (18 CFR the Federal Energy Regulatory document on all the parties to the 385.211). Protests to this filing will be Commission, 888 First Street, NE., proceeding. considered by the Commission in Washington, DC 20426. determining the appropriate action to be The Commission encourages taken, but will not serve to make This filing is accessible on-line at electronic submission of protests in lieu http://www.ferc.gov, using the protestants parties to the proceeding. of paper using the ‘‘eFiling’’ link at ‘‘eLibrary’’ link and is available for Such protests must be filed on or before http://www.ferc.gov. Persons unable to review in the Commission’s Public the date as indicated below. Anyone file electronically should submit an Reference Room in Washington, DC. filing a protest must serve a copy of that There is an ‘‘eSubscription’’ link on the original and 14 copies of the protest to document on all the parties to the Web site that enables subscribers to the Federal Energy Regulatory proceeding. receive e-mail notification when a Commission, 888 First Street, NE., The Commission encourages document is added to a subscribed Washington, DC 20426. electronic submission of protests in lieu docket(s). For assistance with any FERC This filing is accessible on-line at of paper using the ‘‘eFiling’’ link at Online service, please e-mail http://www.ferc.gov, using the http://www.ferc.gov. Persons unable to [email protected], or call ‘‘eLibrary’’ link and is available for file electronically should submit an (866) 208–3676 (toll free). For TTY, call review in the Commission’s Public original and 14 copies of the protest to (202) 502–8659. Reference Room in Washington, DC. the Federal Energy Regulatory There is an ‘‘eSubscription’’ link on the Commission, 888 First Street, NE., Magalie R. Salas, Washington, DC 20426. Secretary. web site that enables subscribers to This filing is accessible on-line at [FR Doc. E4–3489 Filed 12–6–04; 8:45 am] receive email notification when a document is added to a subscribed http://www.ferc.gov, using the BILLING CODE 6717–01–P docket(s). For assistance with any FERC ‘‘eLibrary’’ link and is available for Online service, please e-mail review in the Commission’s Public DEPARTMENT OF ENERGY [email protected], or call Reference Room in Washington, DC. (866) 208–3676 (toll free). For TTY, call There is an ‘‘eSubscription’’ link on the Federal Energy Regulatory (202) 502–8659. Web site that enables subscribers to Commission receive e-mail notification when a Comment Date: 5 p.m. eastern time on document is added to a subscribed [Docket No. RP93–109–021] December 7, 2004 docket(s). For assistance with any FERC Southern Star Central Gas Pipeline, Magalie R. Salas, Online service, please e-mail Inc.; Notice of Refund Report Secretary. [email protected], or call (866) 208–3676 (toll free). For TTY, call [FR Doc. E4–3493 Filed 12–6–04; 8:45 am] November 30, 2004. (202) 502–8659. BILLING CODE 6717–01–P Take notice that on November 18, Comment Date: 5 p.m. eastern time on 2004, Southern Star Central Gas December 7, 2004. Pipeline, Inc. (Southern Star) tendered for filing, pursuant to Article III, Magalie R. Salas, Paragraph D of the Stipulation and Secretary. Agreement dated January 31, 2001 in [FR Doc. E4–3494 Filed 12–6–04; 8:45 am] Docket No. RP93–109–017, its refund BILLING CODE 6717–01–P

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DEPARTMENT OF ENERGY There is an ‘‘eSubscription’’ link on the This filing is accessible on-line at Web site that enables subscribers to http://www.ferc.gov, using the Federal Energy Regulatory receive e-mail notification when a ‘‘eLibrary’’ link and is available for Commission document is added to a subscribed review in the Commission’s Public [Docket No. RP99–480–012] docket(s). For assistance with any FERC Reference Room in Washington, DC. Online service, please e-mail There is an ‘‘eSubscription’’ link on the Texas Eastern Transmission, LP; [email protected], or call Web site that enables subscribers to Notice of Compliance Filing (866) 208–3676 (toll free). For TTY, call receive email notification when a (202) 502–8659. document is added to a subscribed November 30, 2004. docket(s). For assistance with any FERC Magalie R. Salas, Take notice that on November 18, Online service, please e-mail 2004, Texas Eastern Transmission, LP Secretary. [email protected], or call (Texas Eastern) tendered for filing a [FR Doc. E4–3481 Filed 12–6–04; 8:45 am] (866) 208–3676 (toll free). For TTY, call compliance filing pursuant to a BILLING CODE 6717–01–P (202) 502–8659. Commission’s order issued on November 3, 2004, in Docket Nos. Magalie R. Salas, RP99–480–010 and RP99–480–011, DEPARTMENT OF ENERGY Secretary. Texas Eastern Transmission, LP, 109 [FR Doc. E4–3486 Filed 12–6–04; 8:45 am] Federal Energy Regulatory FERC ¶ 61,145 (2004). BILLING CODE 6717–01–P Texas Eastern states that, in Commission accordance with Paragraph 6 of the November 3, 2004 Order, Texas Eastern [Docket No. RP02–132–008] DEPARTMENT OF ENERGY is revising section 1.35A of the General Terms and Conditions of its FERC Gas Viking Gas Transmission Company; Federal Energy Regulatory Tariff to permit Texas Eastern, on a not Notice of Compliance Filing Commission unduly discriminatory basis, to November 30, 2004. [Docket Nos. CP04–223–000, CP04–293– mutually agree with a shipper to a Take notice that on November 18, 000, and CP04–358–000] contractual ROFR in circumstances in 2004, Viking Gas Transmission which a regulatory ROFR does not Company (Viking) tendered for filing to KeySpan LNG, L.P., Algonquin Gas automatically apply. Texas Eastern become part of Viking’s FERC Gas Transmission, L.L.C.; Notice Of proposes to modify its tariff to provide Tariff, First Revised Volume No. 1, the Availability Of The Draft Environmental for a contractual right of first refusal. following tariff sheets to become Impact Statement For The Proposed Texas Eastern states that copies of the effective January 1, 2005: Keyspan LNG Facility Upgrade Project filing were served upon all affected customers of Texas Eastern and Eleventh Revised Sheet No. 5 November 30, 2004. interested state commissions, as well as Ninth Revised Sheet No. 5A The staff of the Federal Energy upon all parties on the Commission’s Eleventh Revised Sheet No. 5B Regulatory Commission (Commission) Eighth Revised Sheet No. 5C has prepared a draft Environmental official service lists in these Ninth Revised Sheet No. 5D proceedings. Impact Statement (EIS) on the liquefied Any person desiring to protest this Viking explains that the filing natural gas (LNG) facility upgrade and filing must file in accordance with Rule pertains to a settlement approved by a natural gas pipeline facilities proposed 211 of the Commission’s Rules of Commission Letter Order issued on by KeySpan LNG, L.P., (KeySpan LNG) Practice and Procedure (18 CFR October 23, 2002. 101 FERC ¶ 61,170 and Algonquin Gas Transmission, 385.211). Protests to this filing will be (2002). L.L.C., (Algonquin) in the above- considered by the Commission in Any person desiring to protest this referenced dockets (collectively referred determining the appropriate action to be filing must file in accordance with Rule to as the KeySpan LNG Facility Upgrade taken, but will not serve to make 211 of the Commission’s Rules of Project). protestants parties to the proceeding. Practice and Procedure (18 CFR The draft EIS was prepared to satisfy Such protests must be filed in 385.211). Protests to this filing will be the requirements of the National accordance with the provisions of considered by the Commission in Environmental Policy Act. The staff § 154.210 of the Commission’s determining the appropriate action to be concludes that if the project is regulations (18 CFR 154.210). Anyone taken, but will not serve to make constructed and operated in accordance filing a protest must serve a copy of that protestants parties to the proceeding. with appropriate mitigating measures as document on all the parties to the Such protests must be filed in recommended, and if the facility can be proceeding. accordance with the provisions of brought into compliance with current The Commission encourages Section 154.210 of the Commission’s federal safety regulations, approval of electronic submission of protests in lieu regulations (18 CFR 154.210). Anyone the proposed project would have of paper using the ‘‘eFiling’’ link at filing a protest must serve a copy of that limited adverse environmental impact. http://www.ferc.gov. Persons unable to document on all the parties to the The draft EIS also evaluates alternatives file electronically should submit an proceeding. to the proposal, including system original and 14 copies of the protest to The Commission encourages alternatives, alternative sites for the the Federal Energy Regulatory electronic submission of protests in lieu LNG import terminal, and pipeline Commission, 888 First Street, NE., of paper using the ‘‘eFiling’’ link at alternatives, and requests comments on Washington, DC 20426. http://www.ferc.gov. Persons unable to them. This filing is accessible on-line at file electronically should submit an The proposed facility upgrade would http://www.ferc.gov, using the original and 14 copies of the protest to convert the existing KeySpan LNG ‘‘eLibrary’’ link and is available for the Federal Energy Regulatory storage facility to an LNG terminal review in the Commission’s Public Commission, 888 First Street, NE., capable of receiving marine deliveries, Reference Room in Washington, DC. Washington, DC 20426. increase the facility’s existing

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vaporization capacity from 150 million Commission, 888 First St., NE., Room for distribution and public inspection cubic feet per day (MMcfd) to 525 1A, Washington, DC 20426; at: Federal Energy Regulatory MMcfd, augment the supply of LNG to • Reference Docket No. CP04–223– Commission, Public Reference Room, fill the region’s LNG storage facilities to 000, et al.; 888 First Street, NE., Room 2A, meet peak day needs, and provide 375 • Label one copy of your comments Washington, DC 20426; (202) 502–8371. MMcfd of new, firm, reliable baseload for the attention of Gas Branch 1, PJ– A limited number of copies are supply of natural gas to Rhode Island 11.1; and available from the Public Reference • and the New England region. In order to Mail your comments so that they Room identified above. In addition, provide LNG import and pipeline will be received in Washington, DC on copies of the draft EIS have been mailed transportation services, KeySpan LNG or before January 24, 2005. to Federal, State, and local agencies; requests Commission authorization to Please note that the Commission public interest groups; individuals and upgrade its existing LNG facility and strongly encourages electronic filing of affected landowners who requested a abandon certain facilities that would be any comments or interventions to this copy of the draft EIS; libraries; replaced by the upgrade; and Algonquin proceeding. See 18 CFR newspapers; and parties to this requests Commission authorization to 385.2001(a)(1)(iii) and the instructions proceeding. construct, own, and operate natural gas on the Commission’s Web site at Additional information about the pipeline facilities. The draft EIS http://www.ferc.gov under the ‘‘e- project is available from the evaluates whether the existing peak Filing’’ link and the link to the User’s Commission’s Office of External Affairs, Guide. Prepare your submission in the shaving facility converted into a marine at 1–866–208–FERC or on the FERC same manner as you would if filing on import terminal would comply with the Internet Web site (http://www.ferc.gov) paper and save it to a file on your hard current federal safety standards. using the eLibrary link. Click on the The draft EIS addresses the potential drive. Before you can file comments you eLibrary link, click on ‘‘General Search’’ environmental effects of the will need to create a free account, which and enter the docket number excluding can be created by clicking on ‘‘Login to construction and operation of the the last three digits in the Docket File’’ and then ‘‘New User Account.’’ following LNG and natural gas pipeline Number field. Be sure you have selected In addition to or in lieu of sending an appropriate date range. For facilities: written comments, we invite you to • A ship unloading facility with a assistance, please contact FERC Online attend the public comment meetings we single berth capable of receiving LNG Support at FERCOnlineSupport@ will conduct in the project area. We will ships with cargo capacities of 71,500 to ferc.gov or toll free at 1–866–208–3676, announce in a future notice the location 145,000 cubic meters (m3); and time of the local public meetings to or for TTY, contact (202) 502–8659. The • Two 16-inch-diameter liquid receive comments on the draft EIS. eLibrary link on the FERC Internet Web unloading arms and a 24-inch-diameter These meetings will be posted on the site also provides access to the texts of liquid unloading line from the arms to Commission’s calendar located at formal documents issued by the the LNG storage tank; http://www.ferc.gov/EventCalendar/ Commission, such as orders, notices, • Two vapor return blowers, a 12- EventsList.aspx along with other related and rulemakings. inch-diameter vapor arm, and an 8-inch- information. Interested groups and In addition, the Commission now diameter vapor return line; individuals are encouraged to attend offers a free service called eSubscription • Four boil-off-gas compressors and a and present oral comments on the draft which allows you to keep track of all boil-off gas condenser; EIS. Transcripts of the meetings will be formal issuances and submittals in • A two-stage LNG pumping system; specific dockets. This can reduce the • An indirect fired vaporizer system prepared. After these comments are reviewed, amount of time you spend researching with a capacity of 375 MMcfd; proceedings by automatically providing • any significant new issues are Operations control buildings; you with notification of these filings, • investigated, and modifications are Ancillary utilities and LNG document summaries and direct links to facilities; made to the draft EIS, a final EIS will • be published and distributed by the the documents. Go to the eSubscription A 1.44-mile-long 24-inch-diameter link on the FERC Internet Web site. natural gas pipeline; staff. The final EIS will contain the • A receipt point meter station and staff’s responses to timely comments Magalie R. Salas, 30-inch-diameter pig launcher; and received on the draft EIS. Secretary. • A 24-inch-diameter tap valve and Comments will be considered by the Commission but will not serve to make [FR Doc. E4–3497 Filed 12–6–04; 8:45 am] 30-inch-diameter pig receiver at the BILLING CODE 6717–01–P point where the new pipeline would tie the commentor a party to the into Algonquin’s existing G–12 Lateral proceeding. Any person seeking to become a party to the proceeding must pipeline system. DEPARTMENT OF ENERGY file a motion to intervene pursuant to Comment Procedures and Public Rule 214 of the Commission’s Rules of Federal Energy Regulatory Meetings Practice and Procedures (18 CFR Commission Any person wishing to comment on 385.214). [Docket No. CP05–5–000] the draft EIS may do so. To ensure Anyone may intervene in this consideration prior to a Commission proceeding based on this draft EIS. You must file your request to intervene as Questar Pipeline Company; Notice of decision on the proposal, it is important 1 Availability of the Environmental that we receive your comments before specified above. You do not need intervenor status to have your Assessment for the Proposed the date specified below. Please Southern System Expansion Project carefully follow these instructions to comments considered. The draft EIS has been placed in the ensure that your comments are received November 30, 2004. public files of the FERC and is available in time and properly recorded: The staff of the Federal Energy • Send an original and two copies of Regulatory Commission (FERC or 1 Interventions may also be filed electronically via your comments to: Magalie R. Salas, the Internet in lieu of paper. See the previous Commission) has prepared an Secretary, Federal Energy Regulatory discussion on filing comments electronically. environmental assessment (EA) on the

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natural gas pipeline facilities proposed restaging centrifugal compressor units any comments or interventions or by Questar Pipeline Company (Questar) and the addition of a gas cooler, filter/ protests to this proceeding. See 18 CFR in the above-referenced docket. separator, valves, and yard and station 385.2001(a)(1)(iii) and the instructions The EA was prepared to satisfy the piping; on the Commission’s Web site at http:/ requirements of the National 5. Modifications to Questar’s existing /www.ferc.gov under the ‘‘e-Filing’’ link Environmental Policy Act. The staff Greasewood Compressor Station in Rio and the link to the User’s Guide. Before concludes that approval of the proposed Blanco County, Colorado, consisting of you can file comments you will need to project, with appropriate mitigating the installation of two parallel, create a free account which can be measures, would not constitute a major approximately 750-foot-long segments created by clicking on ‘‘Sign-up.’’ federal action significantly affecting the of new buried piping; Comments will be considered by the quality of the human environment. 6. Retesting of about 23.5 miles of Commission but will not serve to make The EA assesses the potential Questar’s existing ML 40 Pipeline the commentor a party to the environmental effects of the between the proposed Blind Canyon proceeding. Any person seeking to construction and operation of the Compressor Station and Questar’s become a party to the proceeding must proposed natural gas pipeline and existing Whitmore Park block valve to file a motion to intervene pursuant to appurtenant facilities including: increase the MAOP of this segment by Rule 214 of the Commission’s Rules of 1. Installation of about 18.7 miles of approximately 60 psig to approximately Practice and Procedures (18 CFR new 24-inch-diameter pipeline in 860 psig 385.214).1 Only intervenors have the Carbon County, Utah, including pig The purpose of the proposed facilities right to seek rehearing of the launchers and receivers, block valves, would be to expand Questar’s southern Commission’s decision. control headers, cathodic protection pipeline system in order to transport an systems, and associated crossover additional 102,000 decatherms (dths) Affected landowners and parties with piping and valves to interconnect the per day of natural gas on a firm basis environmental concerns may be granted new pipeline into existing pipelines, as from the Uinta/Piceance Basin to gas- intervenor status upon showing good well as; consuming markets, including power cause by stating that they have a clear • Construction of the Fausett Junction producers, located primarily along the and direct interest in this proceeding Facilities consisting of a 20-inch- Wasatch Front. which would not be adequately diameter pig launcher/receiver, one 24- The EA has been placed in the public represented by any other parties. You do inch-diameter pig receiver, and two files of the FERC. A limited number of not need intervenor status to have your control headers; copies of the EA are available for comments considered. • Construction of the Prettyman Tap distribution and public inspection at: Additional information about the Facilities consisting of a tap and valve Federal Energy Regulatory Commission, project is available from the on Questar’s proposed pipeline and Public Reference Room, 888 First Street, Commission’s Office of External Affairs, associated piping to tie into Questar Gas NE., Room 2A, Washington, DC 20426, at 1–866–208–FERC or on the FERC Company’s FL 86 Pipeline; (202) 502–8371. Internet Web site (http://www.ferc.gov) • Construction of one 24-inch- Copies of the EA have been mailed to using the eLibrary link. Click on the diameter pig launcher, one 24-inch- cooperating agencies, state agencies, a eLibrary link, click on ‘‘General Search’’ diameter pig receiver, and one 24-inch- public interest group and a local and enter the docket number excluding diameter block valve for the new newspaper. the last three digits in the Docket pipeline; and a new filter separator to be Any person wishing to comment on Number field. Be sure you have selected constructed on the end of the existing the EA may do so. To ensure an appropriate date range. For slug catcher located within the existing consideration prior to a Commission assistance, please contact FERC Online Price Yard facility; decision on the proposal, it is important Support at [email protected] • Construction of the new 24-inch- that we receive your comments before or toll free at 1–866–208–3676, or for diameter Hayes Wash Block Valve for the date specified below. Please TTY, contact (202) 502–8659. The the new pipeline; carefully follow these instructions to eLibrary link also provides access to the • Construction of the Soldier Creek ensure that your comments are received texts of formal documents issued by the Facilities, consisting of one 24-inch- in time and properly recorded: Commission, such as orders, notices, diameter pig launcher and one 24-inch- • Send an original and two copies of and rulemakings. diameter block valve for the new your comments to: Secretary, Federal In addition, the Commission now pipeline, and one 20-inch-diameter pig Energy Regulatory Commission, 888 offers a free service called eSubscription launcher and one new 20-inch-diameter First St., NE., Room 1A, Washington, DC which allows you to keep track of all pig receiver for Questar’s existing ML 20426; formal issuances and submittals in • 40; and Label one copy of the comments for specific dockets. This can reduce the • Cathodic protection facilities for the the attention of the Gas Branch 3, amount of time you spend researching new pipeline. PJ11.3. • proceedings by automatically providing 2. Installation of the new 6,200 Reference Docket No. CP05–5–000; you with notification of these filings, horsepower (hp) Thistle Creek and • document summaries and direct links to Compressor Station in Utah County, Mail your comments so that they the documents. Go to http:// Utah; will be received in Washington, DC on www.ferc.gov/esubscribenow.htm. 3. Installation of the new 9,400 hp or before December 27, 2004. Blind Canyon Compressor Station, in Please note that we are continuing to Magalie R. Salas, Duchesne County, Utah, including a experience delays in mail deliveries Secretary. slug catcher, pipeline liquid storage from the U.S. Postal Service. As a result, [FR Doc. E4–3483 Filed 12–6–04; 8:45 am] tanks, pig launcher and receiver, and we will include all comments that we BILLING CODE 6717–01–P tie-in valves; receive within a reasonable time frame 4. Modifications to Questar’s existing in our environmental analysis of this 1 Interventions may also be filed electronically via Oak Spring Compressor Station in project. However, the Commission the Internet in lieu of paper. See the previous Carbon County, Utah, consisting of strongly encourages electronic filing of discussion on filing comments electronically.

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DEPARTMENT OF ENERGY Summary of the Proposed Project • Construct Segment 3a—28.0 miles Starks proposes to convert two of 30-inch-diameter gas pipeline from Federal Energy Regulatory existing salt dome caverns and the Tennessee interconnect meter Commission associated brine wells ‘‘Starks No. 1’’ station (MP e 1.80) in Calcasieu Parish, (PPG–10) and ‘‘Starks No. 2’’ (PPG–9) to to the Transcontinental Gas Pipe Line [Docket No. CP05–8–000] a natural gas storage facility in Calcasieu Corporation (Transco) interconnect Parish, Louisiana. The project would meter station (MP e 29.80) in Starks Gas Storage, L.L.C.; Notice of initially utilize Starks No. 1 cavern to Beauregard Parish, Louisiana; and • Intent To Prepare an Environmental store about 13.3 billion cubic feet (Bcf) Construct Segment 3b—3.97 miles Assessment for the Proposed Starks of natural gas comprised of of 30-inch-diameter gas pipeline from Gas Storage Project and Request for approximately 8.8 Bcf of working gas the Transco pipeline interconnect meter Comments on Environmental Issues and about 4.5 Bcf of cushion gas. The station (MP e 29.80) to the Texas Eastern Transmission, LP pipeline interconnect December 1, 2004. facilities would be designed to allow cycling of the entire storage volume 5 to meter station (MP e 33.77) in The staff of the Federal Energy 6 times per year with injections and Beauregard Parish, Louisiana. Regulatory Commission (FERC or withdrawals of approximately 400 The location of the project facilities is Commission) will prepare an million cubic feet per day (MMcfd). shown in Appendix 1.2 environmental assessment (EA) that will Starks No. 2 cavern, to be available Nonjurisdictional Facilities discuss the environmental impacts of about 18 months later, would add 10.4 the Starks Gas Storage Project involving Bcf of working gas and about 5.3 Bcf of No non-jurisdictional facilities that construction and operation of facilities cushion gas. The overall project will be built as a result of the proposed by Starks Gas Storage L.L.C. (Starks) in injection and withdrawal rates would project. Calcasieu and Beauregard Parishes, double. The total storage volume of Land Requirements for Construction Louisiana.1 These facilities would Starks No. 2 cavern would be about 15.6 consist of converting two existing salt Bcf. In Docket No. CP05–8–000, Starks Construction of the proposed pipeline dome caverns to a natural gas storage; proposes the following facilities in and related facilities would require one new compressor station; about 35.6 Calcasieu Parish, Louisiana unless about 219.6 acres of land. Following miles or 16-inch and 30-inch-diameter otherwise specified: construction, about 129.9 acres would of gas pipeline; about 1.9 miles of 10- • Convert two existing salt dome be maintained as new pipeline right-of- inch-diameter brine pipeline; and two caverns and associated brine wells way, roads, or aboveground facility salt water disposal (SWD) injection ‘‘Starks No. 1’’ (PPG–10) and ‘‘Starks sites. The remaining 89.7 acres of land wells (brine disposal). The EA will be No. 2’’ (PPG–9) to a natural gas storage; would be restored and allowed to revert used by the Commission in its decision- • Construct two salt water injection to its former use. making process to determine whether wells (brine disposal); The EA Process the project is in the public convenience • Construct one 33,000 horsepower and necessity. compressor station (Starks Compressor The National Environmental Policy Station); Act (NEPA) requires the Commission to If you are a landowner receiving this • Construct Segment 1a—0.68 mile of take into account the environmental notice, you may be contacted by a 16-inch-diameter gas pipeline and a impacts that could result from an action pipeline company representative about collocated 10-inch diameter brine whenever it considers the issuance of a the acquisition of an easement to disposal pipeline from the Starks Certificate of Public Convenience and construct, operate, and maintain the Compressor Station milepost (MP) west Necessity. NEPA also requires us 3 to proposed facilities. The pipeline (w) 0.00 to the Starks No. 1 storage discover and address concerns the company would seek to negotiate a cavern to MP w 0.68; and a valve station public may have about proposals. This mutually acceptable agreement. at MP w 0.27; process is referred to as ‘‘scoping.’’ The However, if the project is approved by • Construct Segment 1b—0.47 mile of main goal of the scoping process is to the Commission, that approval conveys a 16 inch-diameter gas pipeline from the focus the analysis in the EA on the with it the right of eminent domain. Starks Compressor Station (MP 0.0) to important environmental issues. By this Therefore, if easement negotiations fail the Starks No. 2 storage cavern (MP w Notice of Intent, the Commission to produce an agreement the pipeline 0.47); requests public comments on the scope company could initiate condemnation • Segment 1c—construct 0.20 mile of of the issues it will address in the EA. proceedings in accordance with state 10-inch-diameter brine disposal All comments received are considered law. pipeline from the valve station at MP w during the preparation of the EA. State A fact sheet prepared by the FERC 0.27 to the Starks No. 2 storage cavern and local government representatives entitled ‘‘An Interstate Natural Gas collocated with Segment 1b from MP w are encouraged to notify their Facility On My Land? What Do I Need 0.27 to MP w 0.47; constituents of this proposed action and To Know?’’ was attached to the project • Construct Segment 2a—construct 1.2 miles of 30-inch-diameter gas notice Starks provided to landowners. 2 The appendices referenced in this notice are not This fact sheet addresses a number of pipeline collocated with a 10-inch- being printed in the Federal Register. Copies of all typically asked questions, including the diamter brine disposal pipeline from the appendices, other than appendix 1 (maps), are use of eminent domain and how to Starks Compressor Station MP east (e) available on the Commission’s Web site at the 0.00 to the SWD injection wells from to ‘‘eLibrary’’ link or from the Commission’s Public participate in the Commission’s Reference and Files Maintenance Branch, 888 First proceedings. It is available for viewing MP e 1.21; Street, NE., Washington, DC 20426, or call (202) • on the FERC Internet Web site Construct Segment 2b—0.59 mile 502–8371. For instructions on connecting to (www.ferc.gov). continuation of the 30-inch-diameter gas eLibrary refer to the last page of this notice. Copies pipeline from the SWD injection wells of the appendices were sent to all those receiving this notice in the mail. 1 Stark’s application was filed with the (MP e 1.21) to the Tennessee Gas 3 ‘‘We’’, ‘‘us’’, and ‘‘our’’ refer to the Commission under section 7 of the Natural Gas Act Pipeline Company (Tennessee) environmental staff of the Office of Energy Projects and Part 157 of the Commission(s regulations. interconnect meter station (MP e 1.80); (OEP).

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encourage them to comment on their • One domestic drinking water do not return the Information Request, areas of concern. supply well and one public drinking you will be taken off the mailing list. The EA will discuss impacts that water supply well have been identified The Commission staff will conduct a could occur as a result of the within 150 feet of the pipeline route; field trip of storage caverns, portions of construction and operation of the • Eighteen waterbodies would be the pipeline, and related facilities on proposed project under these general crossed by the pipeline facilities; twelve December 14 through December 16, headings: waterbodies would be crossed by using 2004. Anyone interested in participating • Geology and soils. the horizontal directional drilling in the field trip may attend, but they • Land use. method and six waterbodies would be must provide their own transportation. • Water resources, fisheries, and crossed by using the wet ditch method. The staff will start the field trip on wetlands. • Cultural resources may be affected December 13, 2004 at approximately • Cultural resources. in the project area. 2:00 p.m (CST); and continue Tuesday, • Vegetation and wildlife. December 14, through Wednesday, • Also, we have made a preliminary Air quality and noise. December 15, 2004, as necessary, at • decision to not address the impacts of Endangered and threatened species. the nonjurisdictional facilities. We will approximately 7:30 a.m. Staff will meet • Hazardous waste. briefly describe their location and status each day in the parking lot of the • Public safety. • in the EA. following hotel: Best Western Executive Water resources, fisheries, and Hotel, 1200 Pintail, Sulphur, LA 70665, wetlands. Public Participation Telephone: (337) 625–9000. We will also evaluate possible You can make a difference by alternatives to the proposed project or Becoming an Intervenor providing us with your specific portions of the project, and make comments or concerns about the project. In addition to involvement in the EA/ recommendations on how to lessen or By becoming a commentor, your EIS scoping process, you may want to avoid impacts on the various resource concerns will be addressed in the EA become an official party to the areas. proceeding known as an ‘‘intervenor.’’ Our independent analysis of the and considered by the Commission. You should focus on the potential Intervenors play a more formal role in issues will be in the EA. Depending on the process. Among other things, the comments received during the environmental effects of the proposal, alternatives to the proposal (including intervenors have the right to receive scoping process, the EA may be copies of case-related Commission published and mailed to federal, state, alternative locations/routes), and measures to avoid or lessen documents and filings by other and local agencies, public interest intervenors. Likewise, each intervenor groups, interested individuals, affected environmental impact. The more specific your comments, the more useful must send one electronic copy (using landowners, newspapers, libraries, and the Commission’s eFiling system) or 14 the Commission’s official service list for they will be. Please carefully follow these instructions to ensure that your paper copies of its filings to the this proceeding. A comment period will Secretary of the Commission and must be allotted for review if the EA is comments are received in time and properly recorded: send a copy of its filings to all other published. We will consider all • parties on the Commission’s service list comments on the EA before we make Send an original and two copies of your letter to: Magalie R. Salas, for this proceeding. If you want to our recommendations to the become an intervenor you must file a Commission. Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room motion to intervene according to Rule To ensure your comments are 214 of the Commission’s Rules of considered, please carefully follow the 1A, Washington, DC 20426. • Label one copy of the comments for Practice and Procedure (18 CFR instructions in the public participation 385.214) (see Appendix 2).4 Only section beginning on page 5. the attention of Gas Branch 2. • Reference Docket Nos. CP05–8–000. intervenors have the right to seek Currently Identified Environmental • Mail your comments so that they rehearing of the Commission’s decision. Issues will be received in Washington, DC on Affected landowners and parties with environmental concerns may be granted We have already identified several or before January 3, 2005. intervenor status upon showing good issues that we think deserve attention Please note that we are continuing to cause by stating that they have a clear based on a preliminary review of the experience delays in mail deliveries and direct interest in this proceeding proposed facilities and the from the U.S. Postal Service. As a result, which would not be adequately environmental information provided by we will include all comments that we represented by any other parties. You do Starks. This preliminary list of issues receive within a reasonable time frame not need intervenor status to have your may be changed based on your in our environmental analysis of this environmental comments considered. comments and our analysis. project. However, the Commission • Two federally listed endangered or strongly encourages electronic filing of Environmental Mailing List any comments or interventions or threatened species, the Red-cockaded An effort is being made to send this protests to this proceeding. See 18 CFR Woodpecker and the American chaff- notice to all individuals, organizations, 385.2001(a)(1)(iii) and the instructions seed, may occur in the proposed project and government entities interested in on the Commission’s Web site at http:/ area. and/or potentially affected by the • /www.ferc.gov under the ‘‘e-Filing’’ link A total of about 49.8 acres of known proposed project. This includes all and the link to the User’s Guide. Before wetlands would be affected by landowners who are potential right-of- you can file comments you will need to construction and about 30.2 acres of way grantors, whose property may be create a free account which can be wetlands would be affected by operation used temporarily for project purposes, created on-line. of the project. The compressor station or who own homes within distances would permanently affect about 0.4 acre If you do not want to send comments of wetland and the SWD brine injection at this time but still want to remain on 4 Interventions may also be filed electronically via wells would permanently affect 0.7 acre our mailing list, please return the the Internet in lieu of paper. See the previous of wetlands during operation. Information Request (appendix 4). If you discussion on filing comments electronically.

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defined in the Commission’s regulations d. Applicant: Green Power n. Competing Preliminary Permit— of certain aboveground facilities. By this Development, LLC. Anyone desiring to file a competing notice we are also asking governmental e. Name of Project: Allison Lake application for preliminary permit for a agencies, especially those in Appendix Project. proposed project must submit the 3, to express their interest in becoming f. Location: On the Allison Lake and competing application itself, or a notice cooperating agencies for the preparation Creek, in Valdez Region, Alaska. No of intent to file such an application, to of the EA. federal facilities or land would be used. the Commission on or before the g. Filed Pursuant to: Federal Power specified comment date for the Additional Information Act, 16 U.S.C. 791(a)–825(r). particular application (see 18 CFR 4.36). Additional information about the h. Applicant Contact: Mr. David Submission of a timely notice of intent project is available from the Ausman, Green Power Development, allows an interested person to file the Commission’s Office of External Affairs, LLC, 1503 West 33rd Avenue, competing preliminary permit at 1–866–208–FERC or on the FERC Anchorage, AL 99503, (907) 258–2419. application no later than 30 days after Internet Web site (www.ferc.gov) using i. FERC Contact: Robert Bell, (202) the specified comment date for the the eLibrary link. Click on the eLibrary 502–6062. particular application. A competing link, click on ‘‘General Search’’ and j. Deadline for filing comments, preliminary permit application must enter the docket number excluding the protests, and motions to intervene: 60 conform with 18 CFR 4.30(b) and 4.36. last three digits in the Docket Number days from the issuance date of this o. Competing Development field. Be sure you have selected an notice. Application—Any qualified All documents (original and eight appropriate date range. For assistance, development applicant desiring to file a copies) should be filed with Magalie R. please contact FERC Online Support at competing development application Salas, Secretary, Federal Energy [email protected] or toll must submit to the Commission, on or Regulatory Commission, 888 First free at 1–866–208–3676, or for TTY, before a specified comment date for the Street, NE., Washington, DC 20426. contact (202) 502–8659. The eLibrary particular application, either a Please include the project number (P– link also provides access to the texts of competing development application or a 12530–000) on any comments, protest, formal documents issued by the notice of intent to file such an or motions filed. Commission, such as orders, notices, application. Submission of a timely k. Description of Project: The notice of intent to file a development and rulemakings. proposed project would consist of: (1) A In addition, the Commission now application allows an interested person natural lake having a surface area of 243 to file the competing application no offers a free service called eSubscription acres with a storage capacity of 13,400 which allows you to keep track of all later than 120 days after the specified acre-feet and a normal water surface comment date for the particular formal issuances and submittals in elevation of 1,345 feet mean sea level, specific dockets. This can reduce the application. A competing license (2) a proposed intake structure, (3) a application must conform with 18 CFR amount of time you spend researching proposed 10,000-foot-long, 4-foot- proceedings by automatically providing 4.30(b) and 4.36. diameter steel pipe lined tunnel, (4) a p. Notice of Intent—A notice of intent you with notification of these filings, proposed powerhouse containing one must specify the exact name, business document summaries and direct links to generating unit having an installed address, and telephone number of the the documents. Go to http:// capacity of 4,950 kilowatts, (5) a prospective applicant, and must include www.ferc.gov/esubscribenow.htm. proposed 2.5-mile-long transmission an unequivocal statement of intent to Finally, public meetings or site visits line; and (6) appurtenant facilities. The submit, if such an application may be will be posted on the Commission’s project would have an annual filed, either a preliminary permit calendar located at http://www.ferc.gov/ generation of 20.4 megawatt-hours that application or a development EventCalendar/EventsList.aspx along would be sold to a local utility. The application (specify which type of with other related information. proposed project would operate in a application). A notice of intent must be Magalie R. Salas, run-of-river mode. served on the applicant(s) named in this Secretary. l. Locations of Applications: A copy of public notice. the application is available for q. Proposed Scope of Studies Under [FR Doc. E4–3511 Filed 12–6–04; 8:45 am] inspection and reproduction at the Permit—A preliminary permit, if issued, BILLING CODE 6717–01–P Commission in the Public Reference does not authorize construction. The Room, located at 888 First Street, NE., term of the proposed preliminary permit DEPARTMENT OF ENERGY Room 2A, Washington, DC 20426, or by would be 36 months. The work calling (202) 502–8371. This filing may proposed under the preliminary permit Federal Energy Regulatory also be viewed on the Commission’s would include economic analysis, Commission Web site at http://www.ferc.gov using preparation of preliminary engineering the ‘‘eLibrary’’ link. Enter the docket plans, and a study of environmental Notice of Application Accepted for number excluding the last three digits in impacts. Based on the results of these Filing and Soliciting Motions To the docket number field to access the studies, the Applicant would decide Intervene, Protests, and Comments document. For assistance, call toll-free whether to proceed with the preparation 1–866–208–3676 or e-mail of a development application to December 1, 2004. [email protected]. For TTY, construct and operate the project. Take notice that the following call (202) 502–8659. A copy is also r. Comments, Protests, or Motions to hydroelectric application has been filed available for inspection and Intervene—Anyone may submit with the Commission and is available reproduction at the address in item h. comments, a protest, or a motion to for public inspection: above. intervene in accordance with the a. Type of Application: Preliminary m. Individuals desiring to be included requirements of Rules of Practice and permit. on the Commission’s mailing list should Procedure, 18 CFR 385.210, .211, .214. b. Project No.: 12530–000. so indicate by writing to the Secretary In determining the appropriate action to c. Date filed: August 26, 2004. of the Commission. take, the Commission will consider all

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protests or other comments filed, but b. Project No.: 12531–000. so indicate by writing to the Secretary only those who file a motion to c. Date filed: August 30, 2004. of the Commission. intervene in accordance with the d. Applicant: City of Stoughton, WI. n. Competing Preliminary Permit— Commission’s Rules may become a e. Name of Project: Stoughton Water Anyone desiring to file a competing party to the proceeding. Any comments, Power Project. application for preliminary permit for a protests, or motions to intervene must f. Location: On the Yahara River, in proposed project must submit the be received on or before the specified Dane County, Wisconsin. No Federal competing application itself, or a notice comment date for the particular facilities or land would be used. of intent to file such an application, to application. g. Filed Pursuant to: Federal Power the Commission on or before the Comments, protests and interventions Act, 16 U.S.C. 791(a)–825(r). specified comment date for the may be filed electronically via the h. Applicant Contact: Mr. Karl D. particular application (see 18 CFR 4.36). Internet in lieu of paper; see 18 CFR Manthe, City of Stoughton, WI, 515 Submission of a timely notice of intent 385.2001 (a)(1)(iii) and the instructions South Fourth Street, Stoughton, WI allows an interested person to file the on the Commission’s Web site under ‘‘e- 53589, (608) 873–6303, EXT 622. competing preliminary permit filing’’ link. The Commission strongly i. FERC Contact: Robert Bell, (202) application no later than 30 days after encourages electronic filing. 502–6062. the specified comment date for the s. Filing and Service of Responsive j. Deadline for filing comments, particular application. A competing Documents—Any filings must bear in protests, and motions to intervene: 60 preliminary permit application must all capital letters the title days from the issuance date of this conform with 18 CFR 4.30(b) and 4.36. ‘‘COMMENTS’’, o. Competing Development notice. ‘‘RECOMMENDATIONS FOR TERMS Application—Any qualified All documents (original and eight AND CONDITIONS’’, ‘‘PROTEST’’, or development applicant desiring to file a copies) should be filed with Magalie R. ‘‘MOTION TO INTERVENE’’, as competing development application Salas, Secretary, Federal Energy applicable, and the Project Number of must submit to the Commission, on or Regulatory Commission, 888 First the particular application to which the before a specified comment date for the Street, NE., Washington, DC 20426. filing refers. Any of the above-named particular application, either a Please include the project number (P– documents must be filed by providing competing development application or a 12531–000) on any comments, protest, the original and the number of copies notice of intent to file such an or motions filed. provided by the Commission’s application. Submission of a timely k. Description of Project: The regulations to: The Secretary, Federal notice of intent to file a development proposed run-of-river project would Energy Regulatory Commission, 888 application allows an interested person consist of: (1) An existing 200-foot-long, First Street, NE., Washington, DC 20426. to file the competing application no 9-foot-high concrete dam, (2) an existing A copy of any motion to intervene must later than 120 days after the specified impoundment having a surface area of also be served upon each representative comment date for the particular 11 acres with storage capacity of 80 of the Applicant specified in the application. A competing license acre-feet and a normal water surface particular application. application must conform with 18 CFR t. Agency Comments—Federal, State, elevation of 841.5 feet mean sea level, 4.30(b) and 4.36. and local agencies are invited to file (3) a proposed intake structure, (4) two p. Notice of Intent—A notice of intent comments on the described application. proposed 30-foot-long, 5.5-foot-diameter must specify the exact name, business A copy of the application may be steel penstocks, (5) a proposed address, and telephone number of the obtained by agencies directly from the powerhouse containing two generating prospective applicant, and must include Applicant. If an agency does not file units having an installed capacity of 192 an unequivocal statement of intent to comments within the time specified for kilowatts, (6) a proposed 350-foot-long submit, if such an application may be filing comments, it will be presumed to transmission line; and (7) appurtenant filed, either a preliminary permit have no comments. One copy of an facilities. The project would have an application or a development agency’s comments must also be sent to annual generation of 450 megawatt- application (specify which type of the Applicant’s representatives. hours that would be sold to a local application). A notice of intent must be utility served on the applicant(s) named in this Magalie R. Salas, l. Locations of Applications: A copy public notice. Secretary. of the application is available for q. Proposed Scope of Studies under [FR Doc. E4–3506 Filed 12–6–04; 8:45 am] inspection and reproduction at the Permit—A preliminary permit, if issued, BILLING CODE 6717–01–P Commission in the Public Reference does not authorize construction. The Room, located at 888 First Street, NE., term of the proposed preliminary permit Room 2A, Washington, DC 20426, or by would be 36 months. The work DEPARTMENT OF ENERGY calling (202) 502–8371. This filing may proposed under the preliminary permit also be viewed on the Commission’s would include economic analysis, Federal Energy Regulatory Web site at http://www.ferc.gov using preparation of preliminary engineering Commission the ‘‘eLibrary’’ link. Enter the docket plans, and a study of environmental number excluding the last three digits in Notice of Application Accepted for impacts. Based on the results of these the docket number field to access the Filing and Soliciting Motions To studies, the Applicant would decide document. For assistance, call toll-free Intervene, Protests, and Comments whether to proceed with the preparation 1–866–208–3676 or e-mail of a development application to December 1, 2004. [email protected]. For TTY, construct and operate the project. Take notice that the following call (202) 502–8659. A copy is also r. Comments, Protests, or Motions to hydroelectric application has been filed available for inspection and Intervene—Anyone may submit with the Commission and is available reproduction at the address in item h. comments, a protest, or a motion to for public inspection: above. intervene in accordance with the a. Type of Application: Preliminary m. Individuals desiring to be included requirements of Rules of Practice and permit. on the Commission’s mailing list should Procedure, 18 CFR 385.210, .211, .214.

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In determining the appropriate action to a. Type of Application: Preliminary reproduction at the address in item h. take, the Commission will consider all permit. above. protests or other comments filed, but b. Project No.: 12532–000. m. Individuals desiring to be included only those who file a motion to c. Date Filed: September 1, 2004. on the Commission’s mailing list should intervene in accordance with the d. Applicant: Pine Creek Mine, LLC. so indicate by writing to the Secretary Commission’s Rules may become a e. Name of Project: Pine Creek Mine of the Commission. party to the proceeding. Any comments, Project. n. Competing Preliminary Permit— protests, or motions to intervene must f. Location: On the Morgan and Pine Anyone desiring to file a competing be received on or before the specified Creeks, in Inyo County, California. Part application for preliminary permit for a comment date for the particular of the project would be located on U.S. proposed project must submit the application. Forest Service Land in the Inyo National competing application itself, or a notice Comments, protests and interventions Forest. of intent to file such an application, to may be filed electronically via the g. Filed Pursuant to: Federal Power the Commission on or before the Internet in lieu of paper; see 18 CFR Act, 16 U.S.C. 791(a)–825(r). specified comment date for the 385.2001(a)(1)(iii) and the instructions h. Applicant Contact: Mr. Lynn particular application (see 18 CFR 4.36). on the Commission’s web site under ‘‘e- Goodfellow, Pine Creek Mine, LLC, Submission of a timely notice of intent filing’’ link. The Commission strongly 9050 Pine Creek Road, Bishop, CA allows an interested person to file the encourages electronic filing. 93514, (760) 387–2076. competing preliminary permit s. Filing and Service of Responsive i. FERC Contact: Robert Bell, (202) application no later than 30 days after Documents—Any filings must bear in 502–6062. the specified comment date for the all capital letters the title j. Deadline for filing comments, particular application. A competing ‘‘COMMENTS’’, protests, and motions to intervene: 60 preliminary permit application must ‘‘RECOMMENDATIONS FOR TERMS days from the issuance date of this conform with 18 CFR 4.30(b) and 4.36. AND CONDITIONS’’, ‘‘PROTEST’’, or notice. o. Competing Development ‘‘MOTION TO INTERVENE’’, as All documents (original and eight Application—Any qualified applicable, and the Project Number of copies) should be filed with Magalie R. development applicant desiring to file a the particular application to which the Salas, Secretary, Federal Energy competing development application filing refers. Any of the above-named Regulatory Commission, 888 First must submit to the Commission, on or documents must be filed by providing Street, NE., Washington, DC 20426. before a specified comment date for the the original and the number of copies Please include the project number (P– particular application, either a provided by the Commission’s 12532–000) on any comments, protest, competing development application or a regulations to: The Secretary, Federal or motions filed. notice of intent to file such an Energy Regulatory Commission, 888 k. Description of Project: The application. Submission of a timely First Street, NE., Washington, DC 20426. proposed project would consist of: (1) A notice of intent to file a development A copy of any motion to intervene must proposed diversion structure at application allows an interested person also be served upon each representative approximate elevation 9,000 feet on to file the competing application no of the Applicant specified in the Pine Creek; (2) a proposed diversion later than 120 days after the specified particular application. structure at elevation 8,400 feet, at the comment date for the particular t. Agency Comments—Federal, State, entrance to the Brownstone Mine, to application. A competing license and local agencies are invited to file capture water discharging from the application must conform with18 CFR comments on the described application. Mine; (3) a proposed 2,500-foot-long, 3- 4.30(b) and 4.36. A copy of the application may be foot-diameter steel penstock; (4) a p. Notice of Intent—A notice of intent obtained by agencies directly from the proposed powerhouse containing a 4- must specify the exact name, business Applicant. If an agency does not file megawatt generating unit; (5) a address, and telephone number of the comments within the time specified for proposed tailrace discharging water into prospective applicant, and must include filing comments, it will be presumed to Morgan Creek at elevation 7,840 feet, an unequivocal statement of intent to have no comments. One copy of an (6) a proposed 200-foot-long submit, if such an application may be agency’s comments must also be sent to transmission line; and (7) appurtenant filed, either a preliminary permit the Applicant’s representatives. facilities. application or a development The project would have an annual application (specify which type of Magalie R. Salas, generation of 5.6 gigawatt-hours that application). A notice of intent must be Secretary. would be sold to a local utility. served on the applicant(s) named in this [FR Doc. E4–3507 Filed 12–6–04; 8:45 am] l. Locations of Applications: A copy of public notice. BILLING CODE 6717–01–P the application is available for q. Proposed Scope of Studies Under inspection and reproduction at the Permit—A preliminary permit, if issued, Commission in the Public Reference does not authorize construction. The DEPARTMENT OF ENERGY Room, located at 888 First Street, NE., term of the proposed preliminary permit Room 2A, Washington, DC 20426, or by would be 36 months. The work Federal Energy Regulatory calling (202) 502–8371. This filing may proposed under the preliminary permit Commission also be viewed on the Commission’s would include economic analysis, Notice of Application Accepted for Web site at http://www.ferc.gov using preparation of preliminary engineering Filing and Soliciting Motions To the ‘‘eLibrary’’ link. Enter the docket plans, and a study of environmental Intervene, Protests, and Comments number excluding the last three digits in impacts. Based on the results of these the docket number field to access the studies, the Applicant would decide December 1, 2004. document. For assistance, call toll-free whether to proceed with the preparation Take notice that the following 1–866–208–3676 or e-mail of a development application to hydroelectric application has been filed [email protected]. For TTY, construct and operate the project. with the Commission and is available call (202) 502–8659. A copy is also r. Comments, Protests, or Motions to for public inspection: available for inspection and Intervene—Anyone may submit

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comments, a protest, or a motion to DEPARTMENT OF ENERGY also be viewed on the Commission’s intervene in accordance with the Web site at http://www.ferc.gov using requirements of Rules of Practice and Federal Energy Regulatory the ‘‘eLibrary’’ link. Enter the docket Procedure, 18 CFR 385.210, .211, .214. Commission number excluding the last three digits in In determining the appropriate action to the docket number field to access the Notice of Application Accepted for take, the Commission will consider all document. For assistance, call toll-free Filing and Soliciting Motions To 1–866–208–3676 or e-mail protests or other comments filed, but Intervene, Protests, and Comments only those who file a motion to [email protected]. For TTY, intervene in accordance with the December 1, 2004. call (202) 502–8659. A copy is also available for inspection and Commission’s Rules may become a Take notice that the following reproduction at the address in item h. party to the proceeding. Any comments, hydroelectric application has been filed above. protests, or motions to intervene must with the Commission and is available m. Individuals desiring to be included be received on or before the specified for public inspection: on the Commission’s mailing list should comment date for the particular a. Type of Application: Preliminary so indicate by writing to the Secretary application. Permit. of the Commission. b. Project No.: 12533–000. n. Competing Preliminary Permit— Comments, protests and interventions c. Date Filed: September 1, 2004. may be filed electronically via the Anyone desiring to file a competing d. Applicant: Christopher James Pihl. application for preliminary permit for a Internet in lieu of paper; see 18 CFR e. Name of Project: May Creek Project. 385.2001(a)(1)(iii) and the instructions proposed project must submit the f. Location: On the May Creek and competing application itself, or a notice on the Commission’s Web site under ‘‘e- Lake Isabel, in Snohomish County, filing’’ link. The Commission strongly of intent to file such an application, to Washington. No federal facilities or land the Commission on or before the encourages electronic filing. would be used. specified comment date for the s. Filing and Service of Responsive g. Filed Pursuant to: Federal Power particular application (see 18 CFR 4.36). Documents—Any filings must bear in Act, 16 U.S.C. 791(a)–825(r). Submission of a timely notice of intent all capital letters the title h. Applicant Contact: Mr. Christopher allows an interested person to file the ‘‘COMMENTS’’, James Pihl, 18310NE 136th Street, competing preliminary permit ‘‘RECOMMENDATIONS FOR TERMS Woodinville, WA 98072, (206) 369– application no later than 30 days after AND CONDITIONS’’, ‘‘PROTEST’’, or 8277. the specified comment date for the ‘‘MOTION TO INTERVENE’’, as i. FERC Contact: Robert Bell, (202) particular application. A competing 502–6062. applicable, and the Project Number of preliminary permit application must j. Deadline for filing comments, the particular application to which the conform with 18 CFR 4.30(b) and 4.36. protests, and motions to intervene: 60 filing refers. Any of the above-named o. Competing Development days from the issuance date of this Application—Any qualified documents must be filed by providing notice. the original and the number of copies development applicant desiring to file a All documents (original and eight competing development application provided by the Commission’s copies) should be filed with Magalie R. must submit to the Commission, on or regulations to: The Secretary, Federal Salas, Secretary, Federal Energy before a specified comment date for the Energy Regulatory Commission, 888 Regulatory Commission, 888 First particular application, either a First Street, NE., Washington, DC 20426. Street, NE., Washington, DC 20426. competing development application or a A copy of any motion to intervene must Please include the project number (P– notice of intent to file such an also be served upon each representative 12533–000) on any comments, protest, application. Submission of a timely of the Applicant specified in the or motions filed. notice of intent to file a development particular application. k. Description of Project: The application allows an interested person t. Agency Comments—Federal, State, proposed project would consist of : (1) to file the competing application no and local agencies are invited to file A natural lake having a surface area of later than 120 days after the specified comments on the described application. 200 acres with a storage capacity of comment date for the particular A copy of the application may be 2,000 acre-feet and a normal water application. A competing license surface elevation of 2,000 feet msl, (2) obtained by agencies directly from the application must conform with 18 CFR a proposed intake structure, (3) a Applicant. If an agency does not file 4.30(b) and 4.36. proposed 9,078-foot-long, 40-inch- p. Notice of Intent—A notice of intent comments within the time specified for diameter steel pipe, (4) a proposed must specify the exact name, business filing comments, it will be presumed to powerhouse containing one generating address, and telephone number of the have no comments. One copy of an unit having an installed capacity of 12 prospective applicant, and must include agency’s comments must also be sent to MW, (5) a proposed 5,468-foot-long 69 an unequivocal statement of intent to the Applicant’s representatives. kV transmission line; and (6) submit, if such an application may be Magalie R. Salas, appurtenant facilities. The project filed, either a preliminary permit would have an annual generation of 3.1 Secretary. application or a development GWh that would be sold to a local application (specify which type of [FR Doc. E4–3508 Filed 12–6–04; 8:45 am] utility. The proposed project would application). A notice of intent must be BILLING CODE 6717–01–P operate in a run-of-river mode. served on the applicant(s) named in this l. Locations of Applications: A copy public notice. of the application is available for q. Proposed Scope of Studies Under inspection and reproduction at the Permit—A preliminary permit, if issued, Commission in the Public Reference does not authorize construction. The Room, located at 888 First Street NE., term of the proposed preliminary permit Room 2A, Washington DC 20426, or by would be 36 months. The work calling (202) 502–8371. This filing may proposed under the preliminary permit

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would include economic analysis, DEPARTMENT OF ENERGY For more information about the preparation of preliminary engineering conference, please contact Kelly Perl at plans, and a study of environmental Federal Energy Regulatory 202–502–6421 or [email protected]. impacts. Based on the results of these Commission Magalie R. Salas, studies, the Applicant would decide Secretary. whether to proceed with the preparation [Docket No. RM04–7–000] of a development application to Technical Conference on Transmission construct and operate the project. Market Based Rates for Public Utilities; Market Power and Barriers to Entry, r. Comments, Protests, or Motions to Supplemental Notice of Agenda for December 7, 2004, 9:30 a.m.–5 p.m. Intervene—Anyone may submit Technical Conference The purpose of this conference will be to comments, a protest, or a motion to discuss the second and third prongs of the intervene in accordance with the December 1, 2004. Commission’s assessment of an applicant’s request for market-based rate authority: requirements of Rules of Practice and The attachment to this supplemental transmission market power and barriers to Procedure, 18 CFR 385.210, .211, .214. notice provides additional information entry. Panelists will each be asked to address In determining the appropriate action to concerning the December 7, 2004, issues among the following in an overview take, the Commission will consider all technical conference to discuss issues prepared statement. The panelists’ statements protests or other comments filed, but associated with transmission market will be followed by questions and general only those who file a motion to power and barriers to entry. (See discussion: intervene in accordance with the November 12, 2004, Notice of Technical Transmission Market Power and Commission’s Rules may become a Conference.) The conference will begin Transmission Barriers to Entry Questions party to the proceeding. Any comments, at 9:30 a.m. (e.s.t.) and will conclude at 1. How should transmission market power protests, or motions to intervene must approximately 5 p.m. and will be be defined? Should it be defined as merely be received on or before the specified convened in the Commission Meeting the ownership of generation and comment date for the particular Room at the Federal Energy Regulatory transmission in the same relevant market? application. Commission, 888 First Street, NE., 2. Can transmission market power be used Comments, protests and interventions Washington, DC. Members of the to foreclose competition or raise prices? If so, may be filed electronically via the how? Commission will attend the conference. 3. How does transmission market power Internet in lieu of paper; See 18 CFR All interested persons are invited to impact customer interests? For example, are 385.2001(a)(1)(iii) and the instructions attend. Microphones will be available to prices significantly higher than they would on the Commission’s Web site under ‘‘e- enable those in the audience to have been without transmission market filing’’ link. The Commission strongly participate in the discussion. power? Is access to cheaper sources of supply encourages electronic filing. limited? Is flexibility to respond to changing The topic of the conference will be s. Filing and Service of Responsive market conditions impaired? issues associated with transmission or 4. How does transmission market power Documents—Any filings must bear in vertical market power, and barriers to all capital letters the title impact power supplier interests? For entry in electric markets, which are two example, is power plants’ energy production ‘‘COMMENTS’’, of the four prongs the Commission constrained by the exercise or suspected ‘‘RECOMMENDATIONS FOR TERMS currently uses to determine whether to exercise of transmission market power? AND CONDITIONS’’, ‘‘PROTEST’’, OR grant market-based rate authority. The 5. What challenges do owners of ‘‘MOTION TO INTERVENE’’, as conference will address whether the uncommitted capacity face in securing long applicable, and the Project Number of term power contracts or selling power on a Commission’s pro forma open access the particular application to which the short term basis? transmission tariff adequately mitigates filing refers. Any of the above-named 6. How does the existence of long term and transmission market power, other documents must be filed by providing evergreen firm transmission contracts affect proposals to identify and mitigate the original and the number of copies power supplier entry? transmission market power, as well as 7. How important a factor is transmission provided by the Commission’s whether and, if so, to what extent there congestion in the production, scheduling and regulations to: The Secretary, Federal consumption of power? To what degree can Energy Regulatory Commission, 888 are other barriers to entry that the Commission should consider. transmission congestion be attributed to First Street, NE., Washington, DC 20426. physical transmission constraints and what A copy of any motion to intervene must The conference will be transcribed. degree to the exercise of transmission market also be served upon each representative Those interested in acquiring the power? How can the Commission distinguish of the Applicant specified in the transcript should contact Ace Reporters between these two? particular application. at 202–347–3700 or 800–336–6646. 8. How can the Commission differentiate between the exercise of transmission market t. Agency Comments—Federal, state, Transcripts will be placed in the public record ten days after the Commission power from legitimate reliability-driven and local agencies are invited to file denials of access? comments on the described application. receives the transcripts. Additionally, 9. Do instances exist where transmission A copy of the application may be Capitol Connection offers the unavailability has led to the abandonment of obtained by agencies directly from the opportunity for remote listening and plans to either build or expand generating Applicant. If an agency does not file viewing of the conference. It is available capacity or to contract with a merchant comments within the time specified for for a fee, live over the Internet, by phone supplier? filing comments, it will be presumed to or via satellite. Persons interested in 10. Does the Commission’s pro forma open have no comments. One copy of an receiving the broadcast, or who need access transmission tariff adequately mitigate transmission market power? If not, specify agency’s comments must also be sent to information on making arrangements, should contact David Reininger or Julia whether there are ways the tariff could be the Applicant’s representatives. modified or better enforced to achieve this Morelli at Capitol Connection (703– Magalie R. Salas, goal. 993–3100) as soon as possible or visit 11. Is it possible to eliminate or mitigate Secretary. the Capitol Connection Web site at transmission market power apart from [FR Doc. E4–3509 Filed 12–6–04; 8:45 am] http://www.capitolconnection.org and structural remedies? If so, how, and are there BILLING CODE 6717–01–P click on ‘‘FERC.’’ ways do to it apart from the OATT?

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12. Can analytical tools to assess 8649 or Moira B. Notargiacomo at (202) Docket No. ER04–375, Midwest transmission market power be developed to 502–8083. Independent Transmission System screen out behavior motivated by legitimate Operator, Inc., et al.; business interests and direct the Magalie R. Salas, Docket Nos. EL04–43 and EL04–46, Commission’s attention to areas where Secretary. Tenaska Power Services Co. and Cargill transmission market power is more likely to [FR Doc. E4–3487 Filed 12–6–04; 8:45 am] be exercised? Power Markets, LLC v. Midwest 13. Does the existence of significant BILLING CODE 6717–01–P Independent Transmission System transmission constraints constitute a barrier Operator, Inc. to entry that should be considered in These meetings are open to the authorizing market-based rates for a DEPARTMENT OF ENERGY public. transmission provider? For more information, contact Patrick Federal Energy Regulatory Clarey, Office of Markets, Tariffs and Non-Transmission Barriers to Entry Commission Questions Rates, Federal Energy Regulatory Commission at (317) 249–5937 or 1. Can the lack of competition in fuel or Notice of Ferc Staff Attendance at other inputs constrain entry in the generation Various MISO-Related Meetings [email protected], or Christopher business? If so, how? Miller, Office of Markets, Tariffs and 2. Can monopolization or attempted December 1, 2004. Rates, Federal Energy Regulatory monopolization of future generating sites be The Federal Energy Regulatory Commission at (317) 249–5936 or a significant barrier to entry in generation? If Commission hereby gives notice that [email protected]. so, how, and what can be done to remedy members of its staff may attend the Magalie R. Salas, this problem? following meetings involving the 3. Have financial constraints, such as Midwest Independent Transmission Secretary. access to capital or creditworthiness issues, System Operator, Inc. (MISO), noted [FR Doc. E4–3504 Filed 12–6–04; 8:45 am] been a serious barrier to entry in generation, BILLING CODE 6717–01–P or any other aspect of the electric power below: business? Organization of MISO States Annual Meeting—December 9, 2004, 10:30 4. Are there other barriers to entry the DEPARTMENT OF ENERGY Commission should consider in granting a.m.–3 p.m. (e.s.t.). Lakeside Conference market based rates? If so, how should the Center (directly across from MISO’s Federal Energy Regulatory Commission test for the extent of harm to headquarters), 630 West Carmel Drive, Commission customers of competitors associated with Carmel, IN 46032. such barriers? MISO Advisory Committee Meetings 5. Does the lack of an adequate competitive Notice of FERC Staff Attendance at (Wednesdays, 10 a.m.–4 p.m.) and Meetings of Southwest Power Pool solicitation program by a utility that has MISO Board of Directors Meetings monopsony power constitute a barrier to Board of Directors and Members entry? (Thursdays, 8:30 a.m.–9:45 p.m.): Committee and Meeting of Southwest January 19–20, 2005; Power Pool Regional State Committee [FR Doc. E4–3510 Filed 12–6–04; 8:45 am] February 16–17, 2005; BILLING CODE 6717–01–P March 16–17, 2005; December 1, 2004. April 20–21, 2005; The Federal Energy Regulatory May 18–19, 2005; Commission hereby gives notice that June 15–16, 2005; DEPARTMENT OF ENERGY members of its staff may attend the July 20–21, 2005; meetings of the Southwest Power Pool Federal Energy Regulatory August 17–18, 2005; (SPP) Board of Directors and Members Commission September 14–15, 2005; October 19–20, 2005; Committee noted below, and the [Docket No. RP04–360–000] November 16–17, 2005; meeting of the SPP Regional State December 7–8, 2005. Committee noted below. The staff’s Martimes and Northeast Pipeline, LLC; Advisory Committee meetings are attendance is part of the Commission’s Notice of Informal Settlement held at: Lakeside Conference Center ongoing outreach efforts. Conference (directly across from MISO’s SPP Regional State Committee Meeting— November 30, 2004. headquarters), 630 West Carmel Drive, January 24, 2005, 1 p.m .–5 p.m. (c.s.t.) Carmel, IN 46032. Take notice that an informal Sam’s Town Casino Hotel and Convention The Board of Directors meetings are Center, 315 Clyde Fant Parkway, settlement conference will be convened held at: 701 City Center Drive (MISO Shreveport, LA 71101, (318) 429–6859. in this proceeding at 9:30 a.m. (e.s.t.) on Headquarters), Carmel, IN 46032. SPP Board of Directors and Members Friday, December 3, 2004, at the offices The discussions may address matters Committee Meeting—December 14, 2004, of the Federal Energy Regulatory at issue in the following proceedings: 10:30 a.m.–3 p.m. (c.s.t) Commission, 888 First Street, NE., Docket No. ER04–691 and EL04–104, DFW Airport Hyatt, Dallas, Texas, (972) Washington, DC 20426, for the purpose Midwest Independent Transmission 453–1234. of exploring the possible settlement of System Operator, Inc., et al.; SPP Board of Directors and Members the above-referenced docket. Docket No. EL02–65–000, et al., Committee Meeting—January 25, 2005, 9 Any party, as defined by 18 CFR Alliance Companies, et al.; a.m.–3 p.m. 385.102(c), or any participant as defined Docket No. RT01–87–000, et al., Sam’s Town Casino Hotel and Convention by 18 CFR 385.102(b), is invited to Midwest Independent Transmission Center, 315 Clyde Fant Parkway, Shreveport, LA 71101, (318) 429–6859. attend. Persons wishing to become a System Operator, Inc.; party must move to intervene and Docket No. ER03–323, et al., Midwest The discussions may address matters receive intervenor status pursuant to the Independent Transmission System at issue in the following proceedings: Commission’s regulations (18 CFR Operator, Inc.; Docket Nos. RT04–1–000 and ER04–48–000, 385.214). Docket No. ER03–1118, Midwest Southwest Power Pool, Inc. For additional information, please Independent Transmission System Docket No. ER04–833–000, Southwest Power contact Arnold H. Meltz at (202) 502– Operator, Inc.; Pool, Inc.

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Docket No. ER04–1096–000, Southwest DEPARTMENT OF ENERGY Great Salt Plains, LLC (Project No. Power Pool, Inc. 12263–001); Wappapello Hydro, LLC Docket No. EL05–16–000, Aquila Merchant Federal Energy Regulatory (Project No. 12268–001); GV Services, Inc. v. Southwest Power Pool, Commission Inc. Montgomery Hydro, LLC (Project No. Docket No. ER05–109–000, Southwest Power 12277–001); KR 6 Hydro, LLC (Project Pool, Inc. Notice of Surrender of Preliminary No. 12278–001); Wilkins Hydro, LLC Docket No. ER05–156–000, Southwest Power Permits (Project No. 12281–001); Huntington Pool, Inc. November 30, 2004. Hydro, LLC (Project No. 12294–001); These meetings are open to the public. Rough River Hydro, LLC (Project No. For more information, contact Tony Symbiotics, LLC (Project No. 11978– 12364–002); Coralville Hydro, LLC Ingram, Office of Markets, Tariffs and 002); Symbiotics, LLC (Project No. (Project No. 12417–001) Rates, Federal Energy Regulatory 12037–001); Prosser Creek Hydro, LLC Take notice that the permittees for the Commission at (202) 502–8938 or (Project No. 12191–001); McCloud [email protected]. Hydro, LLC (Project No. 12195–001); subject projects have requested to Gillham Hydro, LLC (Project No. 12226– surrender their preliminary permits. Magalie R. Salas, 002); Nimrod Hydro, LLC (Project No. Investigations and feasibility studies Secretary. 12237–001); San Jacinto Hydro, LLC have shown that the projects would not [FR Doc. E4–3505 Filed 12–6–04; 8:45 am] (Project No. 12242–001); Spavinaw be economically feasible. BILLING CODE 6717–01–P Hydro, LLC (Project No. 12243–001);

Project No. Project name Stream State Expiration date

11978–002 ...... Vega Dam ...... Plateau Creek ...... CO August 31, 2006. 12037–001 ...... Swift Dam ...... Birch Creek ...... MT April 30, 2005. 12191–001 ...... Prosser Creek Dam ...... Prosser Creek ...... CA May 31, 2006. 12195–001 ...... McCloud Dam ...... McCloud River ...... CA October 31, 2006. 12226–002 ...... Gillham Dam ...... Cossatot River ...... AR September 30, 2005. 12237–001 ...... Nimrod Dam ...... Fourche La Fave River ...... AR October 31, 2005. 12242–001 ...... San Jacinto Dam ...... San Jacinto River ...... TX March 31, 2006. 12243–001 ...... Spavinaw Dam ...... Spavinaw Creek ...... OK January 31, 2006. 12263–001 ...... Great Salt Plains Dam ...... Arkansas River ...... AR January 31, 2006. 12268–001 ...... Wappapello Dam ...... St. Francis River ...... MO April 30, 2006. 12277–001 ...... G.V. Montgomery Dam ...... Tombigbee River ...... MS January 31, 2006. 12278–001 ...... Kentucky River L&D #6 ...... Kentucky River ...... KY October 31, 2005. 12281–001 ...... Wilkins L&D ...... Tombigbee River ...... MS January 31, 2006. 12294–001 ...... J. Edwards Roush Lake Dam ...... Wabash River ...... IN October 31, 2006. 12364–002 ...... Rough River Dam ...... Rough River ...... KY August 31, 2006. 12417–001 ...... Coralville Dam ...... Iowa River ...... IA July 31, 2006.

The permits shall remain in effect ENVIRONMENTAL PROTECTION ADDRESSES: Submit your comments, through the thirtieth day after issuance AGENCY referencing docket ID number ORD– 2004–0019, to EPA online using of this notice unless that day is [ORD–2004–0019; FRL–7845–5] Saturday, Sunday, or holiday as EDOCKET (our preferred method), by e- described in 18 CFR 385.2007, in which Agency Information Collection mail to [email protected], or by mail case each permit shall remain in effect Activities: Proposed Collection; to: EPA Docket Center, Environmental through the first business day following Comment Request; Detroit Children’s Protection Agency, Office of that day. New applications involving Health Study: Health Effects of Environmental Information Docket, Mail these project sites, to the extent Environmental Exposures Among Code 28221T, 1200 Pennsylvania Ave., provided for under 18 CFR part 4, may Children Living in the Detroit, Michigan NW., Washington, DC 20460. be filed on the next business day. Area, EPA ICR Number 2167.01 FOR FURTHER INFORMATION CONTACT: Susan Auby, Environmental Protection AGENCY: Environmental Protection Magalie R. Salas, Agency, Office of Information Agency (EPA). Secretary. Collection, Office of Environmental ACTION: [FR Doc. E4–3485 Filed 12–6–04; 8:45 am] Notice. Information, 1200 Pennsylvania Ave., BILLING CODE 6717–01–P SUMMARY: In compliance with the NW., Mail Code 28221T, Washington, Paperwork Reduction Act (44 U.S.C. DC 20460; telephone number: (202) 3501 et seq.), this notice announces that 566–1672; fax number: (202) 566–1753; EPA is planning to submit a proposed e-mail address: [email protected]. Information Collection Request (ICR) to SUPPLEMENTARY INFORMATION: EPA has the Office of Management and Budget established a public docket for this ICR (OMB). This is a request for a new under Docket ID number ORD–2004– collection. Before submitting the ICR to 0019, which is available for public OMB for review and approval, EPA is viewing at the Office of Research and soliciting comments on specific aspects Development Docket in the EPA Docket of the proposed information collection Center (EPA/DC), EPA West, Room as described below. B102, 1301 Constitution Ave., NW., DATES: Comments must be submitted on Washington, DC. The EPA Docket or before February 7, 2005. Center Public Reading Room is open

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from 8:30 a.m. to 4:30 p.m., Monday Laboratory, Office of Research and the questionnaire, seal the completed through Friday, excluding legal Development, U.S. EPA. The purpose of form in the provided envelope, and holidays. The telephone number for the this study is to examine the respiratory send the envelope back to the teacher Reading Room is (202) 566–1744, and health effects in school-age children of with the child. the telephone number for the Office of mobile and point source air pollutants. Ambient air pollutants will be Research and Development Docket is Further knowledge regarding the measured at twenty-five elementary (202) 566–1752. An electronic version of respiratory health effects of airborne schools in the Detroit metropolitan area. the public docket is available through particulate matter is required to reduce These twenty-five schools were selected EPA Dockets (EDOCKET) at http:// scientific uncertainties in the to represent areas close to and far away www.epa.gov/edocket. Use EDOCKET to development of an Air Quality Criteria from Detroit roadways and the obtain a copy of the draft collection of for Particulate Matter under the Clean international border crossings as well as information, submit or view public Air Act (42 U.S.C. 7403(d)). The those areas in between. Once explicit comments, access the index listing of National Academy of Science’s permission has been received from both the contents of the public docket, and to Committee on Research Priorities for the parent and the child, the children access those documents in the public Airborne Particulate Matter has from the selected schools will attempt to docket that are available electronically. identified several issues of scientific perform a routine pulmonary function Once in the system, select ‘‘search,’’ uncertainty in health effects of airborne examination and an exhaled nitric oxide then key in the docket ID number particulate matter exposures, including (NO) exam. The pulmonary function identified above. the role of particle size and the role of exam consists of blowing three to eight Any comments related to this ICR particulate matter constituents and co- times into a tube connected to a should be submitted to EPA within 60 pollutants. The Detroit Children’s spirometer. During the pulmonary days of this notice. EPA’s policy is that Health Study will contribute to our function examination, a field technician public comments, whether submitted understanding of whether long-term, will record each child’s height and electronically or in paper, will be made early-life exposures to mobile source weight, and coach the child to perform available for public viewing in emissions, particularly diesel exhaust the breathing tests. A new, sterile, EDOCKET as EPA receives them and particles, play a key role in the disposable mouthpiece will be used for without change, unless the comment initiation of allergic asthma in each child in each test. The pulmonary contains copyrighted material, CBI, or schoolchildren. function examination will be conducted other information whose public A similar NHEERL research project, according to guidelines developed by disclosure is restricted by statute. When the El Paso Children’s Health Study, the American Thoracic Society and will EPA identifies a comment containing was conducted among nearly 9,000 be conducted in the child’s elementary copyrighted material, EPA will provide schoolchildren with a collaboration on school during normal school hours with a reference to that material in the exposure assessment with scientists an school nurse on site during the version of the comment that is placed in from EPA’s National Exposure Research examinations. The exhaled nitric oxide EDOCKET. The entire printed comment, Laboratory (NERL). The border cities of exam consists of exhaling into a bag including the copyrighted material, will Detroit, Michigan and El Paso, Texas made of clear polyvinyl film, fitting the be available in the public docket. share common characteristics such as child’s nostrils with a stopper attached Although identified as an item in the major diesel truck routes and vehicle to an NO sampling line, and measuring official docket, information claimed as idling at international borders, but the the NO emitted through the nostrils and CBI, or whose disclosure is otherwise two areas have great climatic from the mouth. Neither exam is any restricted by statute, is not included in differences. The ORD Multi-Year Plan more stressful than blowing out the the official public docket, and will not for Particulate Matter includes the candles on a birthday cake. be available for public viewing in Detroit Children’s Health Study as an The EPA would like to solicit EDOCKET. For further information integral component of ORD’s research comments to: about the electronic docket, see EPA’s on the adverse health effects of long- (i) Evaluate whether the proposed Federal Register notice describing the term air pollutant exposures in collection of information is necessary electronic docket at 67 FR 38102 (May susceptible populations. for the proper performance of the 31, 2002), or go to http://www.epa.gov./ The parents of children enrolled in functions of the Agency, including edocket. fourth and fifth grades of selected whether the information will have Affected entities: Entities potentially Detroit and Dearborn Public Schools practical utility; affected by this action are school will receive a twenty-page respiratory (ii) Evaluate the accuracy of the officials, parents and children in the health questionnaire along with a Agency’s estimate of the burden of the Detroit and Dearborn Public Schools. written request for permission for their proposed collection of information, Title: Detroit Children’s Health Study: children to participate in a pulmonary including the validity of the Health Effects of Environmental function examination at their school. methodology and assumptions used; Exposures among Children Living in the Participation in the study is entirely (iii) Enhance the quality, utility, and Detroit, Michigan Area. voluntary. The respiratory health clarity of the information to be Abstract: An agency may not conduct questionnaire conforms to the ATS/DLD collected; and or sponsor, and a person is not required standard respiratory symptom (iv) Minimize the burden of the to respond to, a collection of questionnaire and consists of questions collection of information on those who information unless it displays a specific to the child such as general are to respond, including through the currently valid OMB control number. demographic information, childhood use of appropriate automated electronic, The OMB control numbers for EPA’s respiratory illness and history of mechanical, or other technological regulations in 40 CFR are listed in 40 asthma, and current respiratory health collection techniques or other forms of CFR part 9. The proposed study will be conditions. There also are questions information technology, e.g., permitting conducted by the Epidemiology and regarding household characteristics and electronic submission of responses. Biomarkers Branch, Human Studies family history of smoking, asthma, and Burden Statement: The public Division, National Health and respiratory illnesses. One parent from reporting and recordkeeping burden for Environmental Effects Research each family will be asked to complete this collection of information is

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estimated to average 33 minutes per may not conduct or sponsor, and a the telephone number for the Office of response or to range from 0.4–1.5 hours person is not required to respond to, a Research and Development Docket is per respondent annually. This survey collection of information unless it (202) 566–2426. An electronic version of will not be repeated. Burden means the displays a currently valid OMB control the public docket is available through total time, effort, or financial resources number. EPA Dockets (EDOCKET) at http:// expended by persons to generate, To comment on the Agency’s need for www.epa.gov/edocket. Use EDOCKET to maintain, retain, or disclose or provide this information, the accuracy of the submit or view public comments, access information to or for a Federal agency. provided burden estimates, and any the index listing of the contents of the This includes the time needed to review suggested methods for minimizing public docket, and to access those respondent burden, including the use of instructions; develop, acquire, install, documents in the public docket that are automated collection techniques, EPA and utilize technology and systems for available electronically. Once in the has established a public docket for this the purposes of collecting, validating, ICR under Docket ID No. ORD–2004– system, select ‘‘search,’’ then key in the and verifying information, processing 0019, which is available for public docket ID number identified above. and maintaining information, and viewing at the Office of Research and Also, you can send comments to the disclosing and providing information; Development Docket in the EPA Docket Office of Information and Regulatory adjust the existing ways to comply with Center (EPA/DC), EPA West, Room Affairs, Office of Management and any previously applicable instructions B102, 1301 Constitution Ave., NW., Budget, 725 17th Street, NW, and requirements; train personnel to be Washington, DC. The EPA Docket Washington, DC 20503, Attention: Desk able to respond to a collection of Center Public Reading Room is open Office for EPA. Please include the EPA information; search data sources; from 8:30 a.m. to 4:30 p.m., Monday Docket ID No. ORD–2004–0019 and complete and review the collection of through Friday, excluding legal OMB control number (20XX–XXXX) information; and transmit or otherwise holidays. The telephone number for the [insert the appropriate OMB #] in any disclose the information. An agency Reading Room is (202) 566–1744, and correspondence.

Estimated Type of respondent Respondent activities number of re- Burden hours Frequency Total burden Total burden spondents hours cost

Adult ...... Complete Questionnaire 15,000 0.40 1 6000 a $88,320 Child ...... Perform Pulmonary 3,500 0.50 1 1750 b 9,013 Function Exam. Child ...... Perform Exhaled NO 2,000 0.25 1 500 2,575 Exam.

Total ...... 20,500 ...... 8250 99,908 a $14.72/hour. b $5.15/hour (minimum wage).

There are no direct respondent costs ENVIRONMENTAL PROTECTION describes the nature of the information for this data collection. AGENCY collection and its estimated burden and cost. No Annual Record Keeping Burden: [SFUND–2004–0005; FRL–7843–3] An agency may not conduct or sponsor, DATES: Additional comments may be and a person is not required to respond Agency Information Collection submitted on or before January 6, 2005. to, a collection of information unless it Activities; Submission to OMB for ADDRESSES: displays a currently valid OMB control Review and Approval; Comment Submit your comments, number. The OMB control numbers for Request; Superfund Site Evaluation referencing docket ID number SFUND– 2004–0005, to (1) EPA online using EPA’s regulations are listed in 40 CFR and Hazard Ranking System EDOCKET (our preferred method), by Part 9 and 48 CFR Chapter 15. (Renewal), EPA ICR Number 1488.06, OMB Control Number 2050–0095. email to, or by mail to: EPA Docket Dated: November 30, 2004. Center, Environmental Protection John Creason, AGENCY: Environmental Protection Agency, Superfund Docket, Mail Code Acting Director, Human Studies Division. Agency. 5202T, 1200 Pennsylvania Ave., NW., [FR Doc. 04–26816 Filed 12–6–04; 8:45 am] ACTION: Notice. Washington, DC 20460, and (2) OMB at: BILLING CODE 6560–50–P Office of Information and Regulatory SUMMARY: In compliance with the Affairs, Office of Management and Paperwork Reduction Act (44 U.S.C. Budget (OMB), Attention: Desk Officer 3501 et seq.), this document announces for EPA, 725 17th Street, NW., that an Information Collection Request Washington, DC 20503. (ICR) has been forwarded to the Office of Management and Budget (OMB) for FOR FURTHER INFORMATION CONTACT: review and approval. This is a request Angelo Carasea, OSRTI, Office of Solid to renew an existing approved Waste and Emergency Response, Mail collection. This ICR is scheduled to Code 5204G, Environmental Protection expire on November 30, 2004. Under Agency, 1200 Pennsylvania Ave., NW., OMB regulations, the Agency may Washington, DC 20460; telephone continue to conduct or sponsor the number: (703) 603–8828; fax number: collection of information while this (202) 603–9104; email address: submission is pending at OMB. This ICR [email protected].

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SUPPLEMENTARY INFORMATION: EPA has the National Oil and Hazardous Respondents/Affected Entities: States, submitted the following ICR to OMB for Substances Pollution Contingency Plan Indian Tribes, and U.S. territories review and approval according to the (NCP) to include criteria prioritizing performing Superfund site evaluation procedures prescribed in 5 CFR 1320.12. releases throughout the U.S. before activities. On June 21, 2004 (69 FR 34346), EPA undertaking remedial action at Estimated Number of Respondents: sought comments on this ICR pursuant uncontrolled hazardous waste sites. The 607. to 5 CFR 1320.8(d). EPA received no Hazard Ranking System (HRS) is a Frequency of Response: On occasion. comments. model that is used to evaluate the Estimated Total Annual Hour Burden: EPA has established a public docket relative threats to human health and the 150,285. for this ICR under Docket ID No. environment posed by actual or Estimated Total Annual Cost: SFUND–2004–0005, which is available potential releases of hazardous $13,580,375, includes $0 annualized for public viewing at the Superfund substances, pollutants, and capital expenditure, $0 O&M costs, and Docket in the EPA Docket Center (EPA/ contaminants. The HRS criteria take $13,580,375 Respondent Labor Costs, DC), EPA West, Room B102, 1301 into account the population at risk, the though costs are fully reimbursed by the Constitution Ave., NW., Washington, hazard potential of the substances, as Agency. DC. The EPA Docket Center Public well as the potential for contamination Changes in the Estimates: There is a Reading Room is open from 8:30 a.m. to of drinking water supplies, direct decrease of 80,248 hours in the total 4:30 p.m., Monday through Friday, human contact, destruction of sensitive estimated burden currently identified in excluding legal holidays. The telephone ecosystems, damage to natural resources the OMB Inventory of Approved ICR number for the Reading Room is (202) affecting the human food chain, Burdens. This decrease is due to 566–1744, and the telephone number for contamination of surface water used for adjustments to the estimates because the Superfund Docket is (202) 566– recreation or potable water fewer site assessment activities are 0276. An electronic version of the consumption, and contamination of conducted nationally. public docket is available through EPA ambient air. Dockets (EDOCKET) at http:// Dated: November 29, 2004. Under this ICR, the States or Tribal Oscar Morales, www.epa.gov/edocket. Use EDOCKET to authorities will apply the HRS by Director, Collection Strategies Division. submit or view public comments, access identifying and classifying those the index listing of the contents of the releases that warrant further [FR Doc. 04–26818 Filed 12–6–04; 8:45 am] public docket, and to access those investigation. The information collected BILLING CODE 6560–50–P documents in the public docket that are under this ICR is required to help available electronically. Once in the determine whether an individual site is ENVIRONMENTAL PROTECTION system, select ‘‘search,’’ then key in the eligible to be included on the National docket ID number identified above. AGENCY Priorities List (NPL). Only sites on the Any comments related to this ICR NPL are eligible for Superfund-financed [E–DOCKET ID No. ORD–2004–0003; FRL– should be submitted to EPA and OMB 7845–9] within 30 days of this notice. EPA’s remedial actions. An agency may not conduct or policy is that public comments, whether Draft Proposed Sampling Program To sponsor, and a person is not required to submitted electronically or in paper, Determine Extent of World Trade respond to, a collection of information will be made available for public Center Impacts to the Indoor unless it displays a currently valid OMB viewing in EDOCKET as EPA receives Environment them and without change, unless the control number. The OMB control comment contains copyrighted material, numbers for EPA’s regulations in 40 AGENCY: Environmental Protection CBI, or other information whose public CFR are listed in 40 CFR part 9 and are Agency. disclosure is restricted by statute. When identified on the form and/or ACTION: Notice of second extension of EPA identifies a comment containing instrument, if applicable. public comment period for Draft copyrighted material, EPA will provide Burden Statement: The annual public Proposed Sampling Program to a reference to that material in the reporting and recordkeeping burden for Determine Extent of World Trade Center version of the comment that is placed in this collection of information is Impacts to the Indoor Environment. EDOCKET. The entire printed comment, estimated to average 166.1 hours per including the copyrighted material, will response. Burden means the total time, SUMMARY: On October 21, 2004, EPA be available in the public docket. effort, or financial resources expended published a Federal Register notice (69 Although identified as an item in the by persons to generate, maintain, retain, FR 61838) announcing the availability official docket, information claimed as or disclose or provide information to or of the External Review Draft entitled, CBI, or whose disclosure is otherwise for a Federal agency. This includes the Draft Proposed Sampling Program to restricted by statute, is not included in time needed to review instructions; Determine Extent of World Trade Center the official public docket, and will not develop, acquire, install, and utilize Impacts to the Indoor Environment be available for public viewing in technology and systems for the purposes (EPA/600/R–04/169A), and the EDOCKET. For further information of collecting, validating, and verifying beginning of a 30-day public comment about the electronic docket, see EPA’s information, processing and period. On November 19, 2004, EPA Federal Register notice describing the maintaining information, and disclosing published a Federal Register notice (69 electronic docket at 67 FR 38102 (May and providing information; adjust the FR 67735) extending the public 31, 2002), or go to www.epa.gov/ existing ways to comply with any comment period until January 3, 2005, edocket. previously applicable instructions and as requested by members of the Lower Title: Superfund Site Evaluation and requirements; train personnel to be able Manhattan community and labor Hazard Ranking System (Renewal). to respond to a collection of organizations who said a 45-day Abstract: Section 105 of the information; search data sources; extension was needed for them to Comprehensive Environmental complete and review the collection of formulate their comments. Subsequently Response, Compensation, and Liability information; and transmit or otherwise a new request for an additional Act (CERCLA, 1980 and 1986) amends disclose the information. extension was received from members

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of the Lower Manhattan community and those documents in the public docket ‘‘Dockets,’’ and ‘‘EPA Dockets.’’ Once in labor organizations; therefore, EPA is that are available electronically. Once in the system, select ‘‘search,’’ and then now extending the public comment the system, select ‘‘search,’’ then key in key in Docket ID No. ORD–2004–0003. period until January 18, 2005. EPA will the appropriate docket identification The system is an ‘‘anonymous access’’ consider the public comment number. system, which means EPA will not submissions in revising the document. Certain types of information will not know your identity, e-mail address or DATES: The public comment period will be placed in EPA Dockets. As indicated other contact details unless you provide end on January 18, 2005. Technical above, information claimed as CBI and it with the information you submit. comments should be in writing and other information whose disclosure is Information may be sent by electronic must be postmarked by January 18, restricted by statute is not included in mail (e-mail) to [email protected], 2005. the official public docket; the same Attention Docket ID No. ORD–2004– information will not be available for 0003. In contrast to EPA’s electronic ADDRESSES: The External Review Draft, public viewing in EPA Dockets. public docket, EPA’s e-mail system is Draft Proposed Sampling Program to Copyrighted material also will not be not an ‘‘anonymous access’’ system. If Determine Extent of World Trade Center placed in EPA Dockets but will be you send an e-mail directly to the Impacts to the Indoor Environment, is referenced there and available as docket without going through EPA’s available via the Internet on the Web printed material in the official public electronic public docket, EPA’s e-mail page of the World Trade Center (WTC) docket. system automatically captures your e- Expert Technical Review Panel, http:// Persons submitting information mail address, and it becomes part of the www.epa.gov/wtc/panel/. Comments should note that EPA’s policy makes the information in the official public docket may be submitted electronically, by information available as received and at and is made available in EPA’s mail, by facsimile or by hand delivery/ no charge for public viewing in EPA electronic public docket. courier. Please follow the detailed Dockets. This policy applies to You may submit information on a instructions as provided in the information submitted electronically or disk or CD ROM that you mail to the Supplementary Information section in paper, except where restricted by OEI Docket mailing address. Files will below. copyright, CBI or statute. be accepted in WordPerfect, Word or Unless restricted as above, FOR FURTHER INFORMATION CONTACT: For ASCII file format. Avoid the use of information submitted on computer further information on the draft special characters and any form of disks that are mailed or delivered to the sampling proposal, please contact encryption. docket will be transferred to EPA Matthew Lorber at (202) 564–3243 or If you provide information in writing, Dockets. Physical objects will be [email protected]. For further please submit one unbound original, photographed, where practical, and the information regarding the WTC Expert with pages numbered consecutively, photograph will be placed in EPA Technical Review Panel, please contact and three copies. For attachments, Dockets along with a brief description Lisa Matthews at (202) 564–6669 or provide an index, number pages [email protected]. written by the docket staff. You may submit information consecutively with the main text, and SUPPLEMENTARY INFORMATION: electronically, by mail, by facsimile or submit an unbound original and three 1. How to Submit Information to E- by hand delivery/ courier. To ensure copies. Docket: EPA has established an official proper receipt by EPA, include the Dated: December 2, 2004. public docket for information pertaining appropriate docket identification William H. Farland, to this action, Docket ID No. ORD– number with your submission. Please Acting Deputy Assistant Administrator for 2004–0003. The official public docket is adhere to the specified submitting Science, EPA Office of Research and the collection of materials, excluding period. Information received or Development. Confidential Business Information (CBI) submitted past the close date will be [FR Doc. 04–26815 Filed 12–6–04; 8:45 am] or other information whose disclosure is marked ‘‘late’’ and will only be BILLING CODE 6560–50–P restricted by statute, that is available for considered if time permits. public viewing at the Office of If you submit information Environmental Information (OEI) Docket electronically, EPA recommends that ENVIRONMENTAL PROTECTION in the Headquarters EPA Docket Center you include your name, mailing AGENCY (EPA/DC), EPA West Building, Room address, and an e-mail address or other B102, 1301 Constitution Ave., NW., details for contacting you. Also include [FRL–7845–7] Washington, DC. The EPA Docket these contact details on the outside of Notice of Proposed NPDES General Center Public Reading Room is open any disk or CD ROM you submit and in Permit for Discharges From from 8:30 a.m. to 4:30 p.m., Monday any cover letter accompanying the disk Concentrated Animal Feeding through Friday, excluding legal or CD ROM. This ensures that you can Operations (CAFOs) in New Mexico, holidays. The telephone number for the be identified as the person submitting Oklahoma, and on Indian Lands in New Public Reading Room is (202) 566–1744, the information and allows EPA to Mexico and Oklahoma (NMG010000 and the telephone number for the OEI contact you in case the Agency cannot and OKG010000) Docket is (202) 566–1752; facsimile: read what you submit due to technical (202) 566–1753; or e-mail: difficulties or needs to clarify issues AGENCY: Environmental Protection [email protected]. raised by what you submit. If EPA Agency (EPA). An electronic version of the official cannot read what you submit due to ACTION: Notice of draft NPDES general public docket is available through EPA’s technical difficulties and cannot contact permit. electronic public docket and comment you for clarification, this situation may system, EPA Dockets. You may use EPA delay or prevent the Agency’s SUMMARY: EPA Region 6 is proposing to Dockets at http://www.epa.gov/edocket/ consideration of the information. reissue NPDES General Permit No. to submit or view public comments, to To access EPA’s electronic public NMG010000 and OKG010000 for access the index listing of the contents docket from the EPA Internet Home discharges from CAFOs in New Mexico, of the official public docket, and to view Page, select ‘‘Information Sources,’’ Oklahoma, and on Indian lands in New

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Mexico and Oklahoma. This permit was (facility, company, business, sources, coverage must be sought within originally issued in the Federal Register organization, etc.) is regulated by this 30 days after the effective date of this at 58 FR 7610 with an effective date of action, you should carefully examine permit. For newly defined CAFOs March 10, 1993, and an expiration date the applicability criteria in Part I of the (operations defined as CAFOs as of of March 10, 1998. The applicable permit. If you have questions regarding April 14, 2003), but not defined as requirements from that 1993 permit are the applicability of this action to a CAFOs under regulations in effect prior continued in the current proposal to particular entity, consult the person to that date (for example, dry manure- reissue. The current proposal also adds listed in the preceding FOR FURTHER handling poultry operations having as additional requirements contained in INFORMATION CONTACT section. many or more than 125,000 birds), revised CAFO regulations at 40 CFR Section 301(a) of the Clean Water Act coverage must be sought no later than parts 122 and 412 which were (CWA or the Act), 33 U.S.C. 1311(a), February 13, 2006. For new sources, published in the Federal Register at 68 makes it unlawful to discharge coverage must be sought at least 30 days FR 7175 on February 12, 2003. pollutants to waters of the United States prior to the time the CAFO commences DATES: Comments on this proposed in the absence of authorizing permits. operation. CWA section 402, 33 U.S.C. 1342, permit must be submitted by February B. Limitations on Permit Coverage 7, 2005. authorizes EPA to issue National Discharge Elimination System (NPDES) In the proposed permit, certain ADDRESSES: Comments on this proposed permits allowing discharges on CAFOs are not eligible for coverage permit should be sent to the Regional condition they will meet certain under this NPDES general permit, but Administrator, EPA Region 6, 1445 Ross requirements, including CWA sections must apply for an individual NPDES Avenue, Dallas, Texas 75202–2733. 301, 304, and 401 (33 U.S.C. 1331, 1314 permit: FOR FURTHER INFORMATION CONTACT: Ms. and 1341). Those statutory provisions 1. CAFOs that have been notified by EPA Diane Smith, EPA Region 6, 1445 Ross require that NPDES permits include to apply for an individual NPDES permit in Avenue, Dallas, Texas 75202–2733, effluent limitations requiring that accordance with 40 CFR 122.28(b)(3). telephone (214) 665–2145. The authorized discharges: (1) Meet 2. CAFOs that have been notified by EPA complete fact sheet and proposed standards reflecting levels of Region 6 that they are ineligible for coverge permit can be found on the Internet at technological capability, (2) comply because of a past history of non-compliance. http://www.epa.gov/earth1r6/6wq/ with EPA-approved state water quality 3. CAFOs not meeting the Endangered 6wq.htm. Copies of the fact sheet and standards and (3) comply with other Species and/or Historic Properties eligibility proposed permit may also be obtained requirements specified in the permit. state requirements adopted under 4. CAFOs commencing operation after June from Ms. Smith. In addition, the current authority retained by states under CWA 25, 1992, discharging to certain waters in administrative record on the proposal is 510, 33 U.S.C. 1370. Oklahoma that are designated as Outstanding available for examination at the Region’s A. Application for Coverage Resource Waters and/or Scenic Rivers in the Dallas offices during normal working Oklahoma Water Quality Standards, hours after providing Ms. Smith 24 To be covered by this permit, CAFO Appendices A and B. owners/operators must submit a Notice hours advanced notice. C. Effluent Limitations SUPPLEMENTARY INFORMATION: EPA’s of Intent (NOI) for permit coverage. The The permit generally requires that comments and public hearing information required in the NOI is listed there shall be no discharge of manure, procedures may be found at 40 CFR in the permit and is required by Federal litter or process wastewater pollutants 124.10 and 124.12 (48 FR 14264, April regulations at 40 CFR 122.21(a)(1). For into waters of the U.S. from the CAFO 1, 1983, as amended at 49 FR 38051, CAFOs that are not new sources, the production area. Whenever September 26, 1984). The comment Endangered Species and National precipitation causes an overflow of period during which written comments Historic Preservation Act eligibility manure, litter or process wastewater, on the draft permit may be submitted provisions contained in Appendices A however, pollutants in the overflow may extends for 60 days from the date of this and B of the permit must be met. For be discharged into U.S. waters provided notice. During the comment period, any new source CAFOs (Large CAFOs whose the production area is designed, interested person may request a Public construction began after April 14, 2003), constructed, operated and maintained to Hearing by filing a written request and new source expansions of existing contain all manure, litter and process which must state the issues to be raised. CAFOs, the facility must submit an wastewater, including the runoff and A public hearing will be held when EPA Environmental Information Document direct precipitation from a 25-year, 24- finds a significant degree of public (EID) that must contain information for hour rainfall event. The design standard interest. EPA’s use in consultations under the for new source swine, poultry and veal Regulated categories and entities Endangered Species Act and National calf CAFOs is a 100-year, 24-hour include: Historic Preservation Act. The EID enables EPA in performing a National rainfall event. The permit requires no Category Examples of regulated entities Environmental Policy Act (NEPA) discharge of manure, litter or process environmental review. Region 6 must wastewater from retention or control Industry ...... Operators of concentrated have completed the NEPA review and structures to groundwater with a direct animal feeding operations. issued an Environmental Impact hydrologic connection to surface waters Statement (EIS) or Finding of No of the U.S., and no discharge of rainfall This table is not intended to be Significant Impact (FNSI) for a new runoff from manure or litter storage exhaustive, but rather provides a guide source CAFO before the facility is piles. The permit also requires no for readers regarding entities likely to be eligible for coverage under the general discharge of manure, litter or process regulated by this action. This table lists permit. wastewater to waters of the U.S. from the types of entities that EPA is now The permit specifies the deadlines by land application areas under the aware could potentially be regulated by which facilities must apply for permit operational control of the CAFO. These this action. Other types of entities not coverage. For facilities that were defined requirements are contained in the CAFO listed in the table could also be as CAFOs under regulations in effect regulations at 40 CFR part 412 and/or regulated. To determine whether your prior to April 14, 2003, and are not new the previous Region 6 NPDES general

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permit for CAFOs in New Mexico and critical habitat. In order to fulfill it’s New source CAFOs and new source Oklahoma. The permit also contains a obligations under ESA, Region 6 has expansions of existing CAFOs must number of additional requirements, begun consultation with FWS regarding include analysis of their potential which were contained in the previous reissuance of this general permit. effects on federally listed species and Region 6 CAFO general permit, for a EPA proposes use of an eligibility critical habitat in their EIDs. If the CAFO’s animal confinement, storage screening mechanism to ensure CAFO may affect listed species or and handling areas, and manure/ protection of listed species and their critical habitat, EPA will integrate the wastewater land application areas. critical habitat. It is designed to allow required ESA consultation with its NEPA review. D. Nutrient Management Plan (NMP) coverage under this general permit only The permit requires each CAFO to those existing CAFOs that (1) have no D. National Historic Preservation Act covered by the permit to develop and listed species or critical habitat in their Section 6 of the National Historic implement a site-specific NMP, as county or in proximity to their CAFO or Preservation Act (NHPA) requires that required by Federal regulations at 40 discharge locations; or (2) have federal agencies consider the effects of CFR parts 122 and 412. The permit gives completed an ESA section 7 their undertakings (such as issuance of the schedule for developing and consultation that considered all an NPDES permit) on properties listed implementing an NMP. New source currently listed species and critical or eligible for listing in the National CAFOs are required to develop and habitat and which resulted in either a Register of Historic Places. Prior to implement an NMP upon the date of ‘‘no jeopardy’’ opinion by FWS or FWS completion of such an undertaking, the permit coverage. The requirement for concurrence that the CAFO’s permit- Federal agency shall provide the other than new source CAFOs is to related activities are ‘‘unlikely to Advisory Council on Historic develop and implement an NMP no adversely affect’’ listed species or Preservation a reasonable opportunity to later than December 31, 2006. critical habitat; or (3) have an ESA comment on the undertaking. To fulfill section 10 permit which considers all its NHPA obligations, Region 6 is Other Legal Requirements currently listed species and critical initiating consultation with the A. State/Tribal Certification habitat; or (4) can document that the Oklahoma Historical Commission, the CAFO’s permit-related activities are Under section 401(a)(1) of the Act, New Mexico Historical Commission and ‘‘not likely to adversely affect’’ listed EPA may not issue an NPDES permit Indian tribes in New Mexico and species or critical habitat, or has until the State or Tribe in which the Oklahoma. discharge will originate grants or waives reached agreement with FWS on EPA proposes an eligibility screening certification to ensure compliance with measures to avoid or eliminate adverse mechanism designed to minimize harm appropriate requirements of the Act, effects. Existing CAFOs that do not to any properties listed or eligible for state or tribal law. The Region has certify compliance with one or more of listing on the National Register of solicited certification from the States of those criteria cannot obtain coverage Historic Places that may be directly and New Mexico and Oklahoma, and the under the general permit and must adversely affected by the reissuance of Pueblos of Acoma, Isleta, Nambe, submit an individual permit this general permit. This mechanism is Picuris, Pojoaque, Sandia, San Juan, application. This eligibility screening designed to allow coverage under this Santa Clara and Tesuque. mechanism is similar to that included in general permit only to those existing several previously issued and proposed CAFOs (i.e., those on which B. National Environmental Policy Act NPDES general permits, including the construction commenced prior to April With the exception of issuance of a proposed NPDES general permit for 13, 2003) that (1) document that their permit to a ‘‘new source’’, section Small Municipal Separate Storm Sewer permit-related activities do not affect 511(c)(1) of the Clean Water Act Systems in New Mexico and in other properties listed or eligible for listing on exempts EPA NPDES permit actions areas where Region 6 retains NPDES the National Register of Historic Places; from the requirements of the National permitting authority, and the Multi- or (2) have obtained and are in Environmental Policy Act of 1969 sector Stormwater General NPDES compliance with a written agreement (NEPA). New source CAFOs are Large Permit and the Construction Stormwater with the appropriate State Historic CAFOs on which construction began NPDES General Permit for those same Preservation Officer and/or Tribal after April 13, 2003. EPA anticipates areas in Region 6. Historic Preservation Officer that that relatively few CAFOs seeking Note: As a possible alternative to the ESA outlines measures to be taken to coverage under the general permit will eligibility screening mechanism requirements mitigate or prevent adverse effects to be such ‘‘new sources’’. In the proposed (1) and (4), above, EPA Region 6 is currently historic properties. Existing CAFOs that CAFO general permit, a new source working with the U.S. Fish and Wildlife do not certify compliance with one of CAFO must go through the NEPA Service (FWS), as a part of its ESA these criteria cannot obtain coverage environmental review process prior to consultation on the general permit, to under the general permit and must applying for coverage under the permit. geographically designate areas of concern for submit an individual permit A similar NEPA review procedure was endangered species and critical habitat. application. This eligibility screening used under the previous Region 6 CAFO Under this geographic alternative, the mechanism is similar to that included in general permit issued in 1993. eligibility requirement (1) would be met if a several issued and proposed NPDES CAFO, or the point(s) where authorized general permits, including the proposed C. Endangered Species Act discharges reach waters of the U.S., is outside NPDES general permit for Small The Endangered Species Act (ESA) of any designated areas of concern. Where a Municipal Separate Storm Sewer requires federal agencies, in CAFO, or the point(s) where authorized Systems in New Mexico and in other discharges reach waters of the U.S., is located consultation with the U.S. Fish and within a designated area of concern, the areas where Region 6 retains NPDES Wildlife Service (FWS), to insure that eligibility requirement (4) would require the permitting authority, and the Multi- any action they authorize is not likely CAFO to meet conditions and measures to sector Stormwater General NPDES to jeopardize the continued existence of avoid or eliminate adverse effects to listed Permit and the Construction Stormwater any listed species or result in the species or critical habitat that were caused by NPDES General Permit for those same destruction or adverse modification of authorized discharges. areas in Region 6.

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New source CAFOs must include an ACTION: Notice and request for Need and Use: The information analysis of their potential effects on comments. requested enables the applicant to properties listed or eligible for listing on provide Ex-Im Bank with the the National Register of Historic Places SUMMARY: The Export-Import Bank, as a information necessary to determine in their EIDs. If the CAFO may affect part of its continuing effort to reduce eligibility for an indicative offer of eligible properties, EPA will integrate paperwork and respondent burden, support under the loan and guarantee the required section 106 consultation invites the general public and other programs. with its NEPA review. Federal agencies to comment on the Affected Public: Business and other Dated: November 30, 2004. proposed information collection, as for-profit institutions. Jane B. Watson, required by the Paperwork Reduction Respondents: Entities involved in the Act of 1995. Acting Director, Water Quality Protection provision of financing or arranging of Division, EPA Region 6. DATES: Written comments should be financing for foreign buyers of U.S. [FR Doc. 04–26817 Filed 12–6–04; 8:45 am] received on or before January 6, 2005. exports. BILLING CODE 6560–50–P ADDRESSES: Direct all comments to Estimated Annual Respondents: 500. David Rostker, Office of Management Estimated Time per Respondent: 20 and Budget, Office of Information and Minutes. EXPORT-IMPORT BANK OF THE U.S. Regulatory Affairs, NEOB, Room 10202, Estimated Annual Burden: 165. [Public Notice 68] Washington, DC 20503 (202) 395–3897. Frequency of Response: When SUPPLEMENTARY INFORMATION: applying for a Letter of Interest. Agency Information Collection Title and Form Number: Ex-Im Bank Dated: November 30, 2004. Activities: Submission for OMB Letter of Interest Application, EIB Form Solomon Bush, Review; Comment Request 95–9. Agency Clearance Officer. AGENCY: Export-Import Bank of the U.S. OMB Number: 3048–0005. BILLING CODE 6690–01–M

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[FR Doc. 04–26679 Filed 12–6–04; 8:45 am] BILLING CODE 6690–01–C

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FEDERAL RESERVE SYSTEM Environmental Health Specialist examining the way the projects operate Network was published in the Federal and by examining child support Sunshine Act Meeting Register on Thursday, October 21, 2004, outcomes among low-income families in Volume 69, Number 203, pages 61846– the community; and (2) evaluate the TIME AND DATE: 12 p.m., Monday, 61853. On pages 61846, Column 2, community impacts of these December 13, 2004. heading, and 61851, Column 1, Section interventions on marital stability and PLACE: Marriner S. Eccles Federal ‘‘IV. Application and Submission satisfaction, child well-being and child Reserve Board Building, 20th and C Information,’’ under ‘‘IV.3. Submission support outcomes among low-income Streets, NW., Washington, DC 20551. Dates and Times,’’ the notice is families. Primary data for the STATUS: Closed. amended as follows: implementation evaluation will come MATTERS TO BE CONSIDERED: The Letter of Intent (LOI) deadline from observations, interviews, focus date has been extended from November 1. Personnel actions (appointments, groups and records. One-on-one and 22, 2004 to December 10, 2004. promotions, assignments, small group interviews with project staff If your organization has already reassignments, and salary actions) and marriage education service submitted an LOI for this funding involving individual Federal Reserve providers in the community will System employees. opportunity, there is no need to submit provide a detailed understanding of the 2. Any items carried forward from a another. administration and operation of the previously announced meeting. Dated: December 1, 2004. demonstrations. Focus group FOR FURTHER INFORMATION CONTACT: William P. Nichols, discussions will provide insights into Michelle A. Smith, Director, Office of Acting Director, Procurement and Grants participants’ perspectives on marriage Board Members; 202–452–2955. Office, Centers for Disease Control and education and their experiences with Prevention. SUPPLEMENTARY INFORMATION: You may the CHMI interventions. This request for [FR Doc. 04–26800 Filed 12–6–04; 8:45 am] call 202–452–3206 beginning at comments is for semi-structured approximately 5 p.m. two business days BILLING CODE 4163–18–P interviews and focus groups for the before the meeting for a recorded implementation evaluation. announcement of bank and bank holding company applications DEPARTMENT OF HEALTH AND The impact evaluation will be scheduled for the meeting; or you may HUMAN SERVICES integrated with the implementation contact the Board’s Web site at http:// study and will assess the effects of www.federalreserve.gov for an electronic Administration for Children and healthy marriage initiatives by announcement that not only lists Families comparing family- and child well-being applications, but also indicates Proposed Information Collection outcomes in the CHMI communities procedural and other information about Activity; Comment Request with similar outcomes in comparison the meeting. communities that are well-matched to Dated: December 3, 2004. Proposed Projects the project sites. Data from the Robert deV. Frierson, Title: Evaluation of the Community implementation studies will provide the Deputy Secretary of the Board. Healthy Marriage Initiative. basis for the instrumental variable [FR Doc. 04–26960 Filed 12–3–04; 1:59 pm] OMB No. New collection. models of CHMI impacts to help BILLING CODE 6210–01–P Description: The Administration for determine direct or indirect exposure to Children and Families, U.S. Department marriage-related services. At a later of Health and Human Services, is date, comments will be sought on DEPARTMENT OF HEALTH AND conducting a demonstration and information collection for the impact HUMAN SERVICES evaluation called the Community evaluation. Healthy Marriage Initiative (CHMI). Respondents: Lead Project Staff, Demonstration programs are currently Centers for Disease Control and Service Provider Organization Staff, Key Prevention funded through child support enforcement waivers authorized under Community, Civic Stakeholders, and [Funding Opportunity Announcement: RFA section 1115 of the Social Security Act Program Clients. EH 05013] to support healthy marriage, improve Environmental Health Specialist child well-being and increase the Network; Notice of Availability of financial security of children. The Funds—Amendment objective of the evaluation is to: (1) Assess the implementation of A notice announcing the availability community interventions designed to of fiscal year (FY) 2005 funds for an provide marriage education by

ANNUAL BURDEN ESTIMATES

Average number of re- Average bur- Instrument Number of respondents sponses per respond- den hours Total bur- ents per response den hours

Administrative interviews ...... 160 ...... 2 visits, on average ...... 1 320 40 respondents x 4 sites

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ANNUAL BURDEN ESTIMATES—Continued

Average number of re- Average bur- Instrument Number of respondents sponses per respond- den hours Total bur- ents per response den hours

Focus groups ...... 200 ...... 1 ...... 1.5 300 20 focus group partici- pants per site x 10

Estimated Total Annual Burden Dated: November 30, 2004. NIH and its components for Hours: 620 Robert Sargis, construction of new buildings and the In compliance with the requirements Reports Clearance Officer. alteration, renovation, remodeling, of Section 3506(c)(2)(A) of the [FR Doc. 04–26763 Filed 12–6–04; 8:45 am] improvement, expansion, and repair of Paperwork Reduction Act of 1995, the BILLING CODE 4184–01–M existing buildings, including the Administration for Children and provision of equipment necessary to Families is soliciting public comment make the buildings (or applicable part of on the specific aspects of the DEPARTMENT OF HEALTH AND the buildings) suitable for the purpose information collection described above. HUMAN SERVICES for which it was constructed. In terms Copies of the proposed collection of of reporting requirements: Section information can be obtained and National Institutes of Health 52b.9(b) of the regulation requires the comments may be forwarded by writing transferor of a facility which is sold or Proposed Collection; Comment to the Administration for Children and transferred, or owner of a facility, the Request; National Institutes of Health Families, Office of Administration, use of which has changed, to provide Construction Grants—42 CFR Part 52b Office of Information Services, 370 written notice of the sale, transfer or (Final Rule) L’Enfant Promenade, SW., Washington, change within 30 days. Section 5b10(f) DC 20047, Attn: ACF Reports Clearance SUMMARY: In compliance with the requires a grantee to submit an Officer. E-mail address: requirement of section 3506(c)(2)(A) of approved copy of the construction [email protected]. All requests the Paperwork Reduction Act of 1995, schedule prior to the start of should be identified by the title of the for opportunity for public comment on construction. Section 52b.10(g) requires information collection. proposed data collection projects, the a grantee to provide daily construction The Department specifically requests National Institutes of Health (NIH) will logs and monthly status reports upon comments on: (a) Whether the proposed publish periodic summaries of proposed request at the job site. Section 52b.11(b) collection of information is necessary projects to be submitted to the Office of requires applicants for a project for the proper performance of the Management and Budget (OMB) for involving the acquisition of existing functions of the agency, including review and approval. facilities to provide the estimated cost of whether the information shall have Proposed Collection: Title: National the project, cost of the acquisition of practical utility; (b) the accuracy of the Institutes of Health Construction existing facilities, and cost of agency’s estimate of the burden of the Grants—42 CFR Part 52b (Final Rule). remodeling, renovating, or altering proposed collection of information; (c) Type of Information Collection Request: facilities to serve the purposes for which the quality, utility, and clarity of the Extension of No. 0925–0424, expiration they are acquired. In terms of information to be collected; and (d) date 3/31/2005. Need and Use of the recordkeeping requirements: Section ways to minimize the burden of the Information Collection: This request is 52b.10(g) requires grantees to maintain collection of information on for OMB review and approval of an daily construction logs and monthly respondents, including through the use extension for the information collection status reports at the job site. Frequency of automated collection techniques or and recordkeeping requirements of Response: On occasion. Affected other forms of information technology. contained in the regulation codified at Public: Non-profit organizations and Consideration will be given to 42 CFR part 52b. The purpose of the Federal agencies. Type of respondents: comments and suggestions submitted regulation is to govern the awarding and Grantees. The estimated respondent within 60 days of this publication. administration of grants awarded by burden is as follows:

ESTIMATED ANNUAL REPORTING AND RECORDKEEPING BURDEN

Estimated Estimated total Estimated an- number of re- Average bur- Estimated total annual burden nual number sponses per den hours per hour burden hours re- of respondents per response response quested

Reporting: Section 52b.9(b)...... 1 1 .50 .50 .50 Section 52b.10(f) ...... (60) 1 1 60 60 Section 52b.10(g) ...... (60) 12 1 720 720 Section 52b.11(b) ...... 100 1 1 100 100 Recordkeeping: Section 52b.10(g) ...... (60) 260 1 15,600 15,600

Total ...... 101 ...... 16,481 16,481

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The annualized cost to the public, ACTION: Proposed collection; comments are to respond, including the use of based on an average of 60 active grants requested. appropriate automated, electronic, in the construction phase, is estimated mechanical, or other technological at: $576,818. There are no Capital Costs SUMMARY: The Bureau of Customs and collection techniques or other forms of to report. There are no operating or Border Protection (CBP) of the information technology, e.g., permitting Maintenance Costs to report. Department of Homeland Security has electronic submission of responses. Request for Comments: Written submitted the following information Title: CBP Regulations for comments and/or suggestions from the collection request to the Office of Customhouse Brokers. public and affected agencies should Management and Budget (OMB) for OMB Number: 1651–0034. address one or more of the following review and approval in accordance with Form Number: N/A. points: (1) Evaluate whether the the Paperwork Reduction Act of 1995: Abstract: This information is proposed collection of information and CBP Regulations for Customshouse collected to ensure regulatory recordkeeping are necessary for the Brokers. This is a proposed extension of compliance for Customshouse brokers. proper performance of the function of an information collection that was Current Actions: This submission is the agency, including whether the previously approved. CBP is proposing being submitted to extend the expiration information will have practical utility; that this information collection be date with a change in the burden hours. (2) evaluate the accuracy of the agency’s extended with a change to the burden Type of Review: Extension (with estimate of the burden of the proposed hours. This document is published to change). collection of information and obtain comments form the public and Affected Public: Businesses, affected agencies. This proposed recordkeeping, including the individuals, institutions. information collection was previously methodology and assumptions used; (3) Estimated Number of Respondents: published in the Federal Register (69 enhance the quality, utility, and clarity 3800. FR 56449) on September 21, 2004, of the information to be collected and Estimated Time Per Respondent: 1.4 allowing for a 60-day comment period. the recordkeeping information to be hours. This notice allows for an additional 30 maintained; and (4) minimize the Estimated Total Annual Burden days for public comments. This process burden of the collection of information Hours: 5450. is conducted in accordance with 5 CFR on those who are to respond, including Estimated Total Annualized Cost on 1320.10. the use of appropriate automated, the Public: $545,000. DATES: electronic, mechanical, or other Written comments should be If additional information is required technological collection and received on or before January 6, 2005. contact: Tracey Denning, Bureau of recordkeeping techniques of other forms ADDRESSES: Written comments and/or Customs and Border Protection, 1300 of information technology. suggestions regarding the items Pennsylvania Avenue, NW., Room contained in this notice, especially the FOR FURTHER INFORMATION CONTACT: Jerry 3.2.C, Washington, DC 20229, at (202) estimated public burden and associated Moore, NIH Regulations Officer, Office 344–1429. response time should be directed to the of Management Assessment, Division of Dated: November 30, 2004. Office of Management and Budget, Management Support, National Office of Information and Regulatory Tracey Denning, Institutes of Health, 6011 Executive Affairs, Attention: Department of Agency Clearance Officer, Information Boulevard, Room 601, MSC 7669, Treasury Desk Officer, Washington, DC Services Branch. Rockville, Maryland 20852; call (301) 20503. Additionally comments may be [FR Doc. 04–26773 Filed 12–6–04; 8:45 am] 496–4607 (this is not a toll-free number) submitted to OMB via facsimile to (202) BILLING CODE 4820–02–P or e-mail your request to 395–6974. [email protected]. SUPPLEMENTARY INFORMATION: The DEPARTMENT OF HOMELAND DATES: Comments regarding this Bureau of Customs and Border SECURITY information collection and Protection (CBP) encourages the general recordkeeping are best assured of having public and affected Federal agencies to Bureau of Customs and Border full effect if received on or before submit written comments and Protection February 7, 2005. suggestions on proposed and/or Dated: November 30, 2004. continuing information collection Agency Information Collection Jerry Moore, requests pursuant to the Paperwork Activities: Cost Submission Regulations Officer, National Institutes of Reduction Act of 1995 (Pub. L. 104–13). AGENCY: Bureau of Customs and Border Health. Your comments should address one of Protection, Department of Homeland [FR Doc. 04–26788 Filed 12–6–04; 8:45 am] the following four points: (1) Evaluate whether the proposed Security. BILLING CODE 4140–01–P collection of information is necessary ACTION: Proposed collection; comments for the proper performance of the requested. functions of the agency/component, DEPARTMENT OF HOMELAND including whether the information will SUMMARY: The Bureau of Customs and SECURITY have practical utility; Border Protection (CBP) of the (2) Evaluate the accuracy of the Department of Homeland Security has Bureau of Customs and Border agencies/components estimate of the submitted the following information Protection burden of The proposed collection of collection request to the Office of Agency Information Collection information, including the validity of Management and Budget (OMB) for Activities: CBP Regulations for the methodology and assumptions used; review and approval in accordance with Customshouse Brokers (3) Enhance the quality, utility, and the Paperwork Reduction Act of 1995: clarity of the information to be Cost Submission. This is a proposed AGENCY: Bureau of Customs and Border collected; and extension of an information collection Protection, Department of Homeland (4) Minimize the burden of the that was previously approved. CBP is Security. collections of information on those who proposing that this information

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collection be extended with no change Current Actions: There are no changes This notice allows for an additional 30 to the burden hours. This document is to the information collection. This days for public comments. This process published to obtain comments form the submission is being submitted to extend is conducted in accordance with 5 CFR public and affected agencies. This the expiration date. 1320.10. proposed information collection was Type of Review: Extension (without DATES: Written comments should be previously published in the Federal change). received on or before January 6, 2005. Register (69 FR 56449) on September Affected Public: Businesses, ADDRESSES: Written comments and/or 21, 2004, allowing for a 60-day individuals, institutions. suggestions regarding the items comment period. This notice allows for Estimated Number of Respondents: contained in this notice, especially the an additional 30 days for public 1,000. estimated public burden and associated comments. This process is conducted in Estimated Time Per Respondent: 50 response time, should be directed to the accordance with 5 CFR 1320.10. hours. Office of Management and Budget, DATES: Written comments should be Estimated Total Annual Burden Office of Information and Regulatory received on or before January 6, 2005. Hours: 50,000. Affairs, Attention: Department of Estimated Total Annualized Cost on ADDRESSES: Written comments and/or Homeland Security Desk Officer, the Public: $1,089,000. Washington, DC 20503. Additionally suggestions regarding the items If additional information is required contained in this notice, especially the comments may be submitted to OMB via contact: Tracey Denning, Bureau of facsimile to (202) 395–6974. estimated public burden and associated Customs and Border Protection, 1300 SUPPLEMENTARY INFORMATION: The response time, should be directed to the Pennsylvania Avenue, NW., Room Bureau of Customs and Border Office of Management and Budget, 3.2.C, Washington, DC 20229, at (202) Protection (CBP) encourages the general Office of Information and Regulatory 344–1429. Affairs, Attention: Department of public and affected Federal agencies to Homeland Security Desk Officer, Dated: November 30, 2004. submit written comments and Washington, DC 20503. Additionally Tracey Denning, suggestions on proposed and/or comments may be submitted to OMB via Agency Clearance Officer, Information continuing information collection facsimile to (202) 395–6974. Services Branch. requests pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13). SUPPLEMENTARY INFORMATION: The [FR Doc. 04–26774 Filed 12–6–04; 8:45 am] Your comments should address one of Bureau of Customs and Border BILLING CODE 4820–02–P the following four points: Protection (CBP) encourages the general (1) Evaluate whether the proposed public and affected Federal agencies to DEPARTMENT OF HOMELAND collection of information is necessary submit written comments and SECURITY for the proper performance of the suggestions on proposed and/or functions of the agency/component, continuing information collection Bureau of Customs and Border including whether the information will requests pursuant to the Paperwork Protection have practical utility; Reduction Act of 1995 (Pub. L. 104–13). (2) Evaluate the accuracy of the Your comments should address one of Agency Information Collection agencies/components estimate of the the following four points: Activities: Declaration of Ultimate burden of the proposed collection of (1) Evaluate whether the proposed Consignee That Articles Were information, including the validity of collection of information is necessary Exported for Temporary Scientific or the methodology and assumptions used; for the proper performance of the Educational Purposes (3) Enhance the quality, utility, and functions of the agency/component, clarity of the information to be AGENCY: including whether the information will Bureau of Customs and Border collected; and have practical utility; Protection, Department of Homeland (4) Minimize the burden of the (2) Evaluate the accuracy of the Security. collections of information on those who agencies/components estimate of the ACTION: Proposed collection; comments are to respond, including the use of burden of the proposed collection of requested. appropriate automated, electronic, information, including the validity of mechanical, or other technological SUMMARY: the methodology and assumptions used; The Bureau of Customs and collection techniques or other forms of (3) Enhance the quality, utility, and Border Protection (CBP) of the information technology, e.g., permitting clarity of the information to be Department of Homeland Security has electronic submission of responses. collected; and submitted the following information Title: Declaration of Ultimate (4) Minimize the burden of the collection request to the Office of Consignee That Articles Were Exported collections of information on those who Management and Budget (OMB) for for Temporary Scientific or Educational are to respond, including the use of review and approval in accordance with Purposes. appropriate automated, electronic, the Paperwork Reduction Act of 1995: OMB Number: 1651–0036. mechanical, or other technological U.S./Israel Free Trade Agreement. This Form Number: N/A. collection techniques or other forms of is a proposed extension of an Abstract: The ‘‘Declaration of information technology, e.g., permitting information collection that was Ultimate Consignee that Articles were electronic submission of responses. previously approved. CBP is proposing Exported for Temporary Scientific or Title: Cost Submission. that this information collection be Educational Purposes’’ is used to OMB Number: 1651–0028. extended with no change to the burden provide duty free entry under Form Number: Form CBP–247. hours. This document is published to conditions when articles are temporarily Abstract: These Cost Submissions, obtain comments form the public and exported solely for scientific or Form CBP–247, are used by importers to affected agencies. This proposed educational purposes. furnish cost information to CBP which information collection was previously Current Actions: There are no changes serves as the basis to establish the published in the Federal Register (69 to the information collection. This appraised value of imported FR 56448) on September 21, 2004, submission is being submitted to extend merchandise. allowing for a 60-day comment period. the expiration date.

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Type of Review: Extension (without contained in this notice, especially the Estimated Total Annualized Cost on change). estimated public burden and associated the Public: $2,050,650.00. Affected Public: Businesses, response time, should be directed to the Estimated Number of Respondents: individuals, institutions. Office of Management and Budget, 34,500. Estimated Number of Respondents: Office of Information and Regulatory If additional information is required 55. Affairs, Attention: Department of contact: Tracey Denning, Bureau of Estimated Time Per Respondent: 30 Homeland Security Desk Officer, Customs and Border Protection, 1300 minutes. Washington, DC 20503. Additionally Pennsylvania Avenue, NW., Room Estimated Total Annual Burden comments may be submitted to OMB via 3.2.C, Washington, DC 20229, at (202) Hours: 27. facsimile to (202) 395–6974. 344–1429. Estimated Total Annualized Cost on SUPPLEMENTARY INFORMATION: Dated: November 30, 2004. the Public: $754.65. The If additional information is required Bureau of Customs and Border Tracey Denning, contact: Tracey Denning, Bureau of Protection (CBP) encourages the general Agency Clearance Officer, Information Services Branch. Customs and Border Protection, 1300 public and affected Federal agencies to Pennsylvania Avenue, NW., Room submit written comments and [FR Doc. 04–26776 Filed 12–6–04; 8:45 am] 3.2.C, Washington, DC 20229, at (202) suggestions on proposed and/or BILLING CODE 4820–02–P 344–1429. continuing information collection requests pursuant to the Paperwork Dated: November 30, 2004. Reduction Act of 1995 (Pub. L. 104–13). DEPARTMENT OF HOMELAND Tracey Denning, Your comments should address one of SECURITY Agency Clearance Officer, Information the following four points: Services Branch. (1) Evaluate whether the proposed Bureau of Customs and Border [FR Doc. 04–26775 Filed 12–6–04; 8:45 am] collection of information is necessary Protection BILLING CODE 4820–02–P for the proper performance of the Agency Information Collection functions of the agency/component, Activities: Canadian Boat Landing including whether the information will Permit (I–68) DEPARTMENT OF HOMELAND have practical utility; SECURITY (2) Evaluate the accuracy of the AGENCY: Bureau of Customs and Border agencies/components estimate of the Protection, Department of Homeland Bureau of Customs and Border burden of The proposed collection of Security. Protection information, including the validity of ACTION: Proposed collection; comments Agency Information Collection the methodology and assumptions used; requested. Activities: Commercial Invoice (3) Enhance the quality, utility, and clarity of the information to be SUMMARY: The Bureau of Customs and AGENCY: Bureau of Customs and Border collected; and Border Protection (CBP) of the Protection, Department of Homeland (4) Minimize the burden of the Department of Homeland Security has Security. collections of information on those who submitted the following information collection request to the Office of ACTION: Proposed collection; comments are to respond, including the use of Management and Budget (OMB) for requested. appropriate automated, electronic, mechanical, or other technological review and approval in accordance with SUMMARY: The Bureau of Customs and collection techniques or other forms of the Paperwork Reduction Act of 1995: Border Protection (CBP) of the information technology, e.g., permitting Canadian Boat Landing Permit. This is Department of Homeland Security has electronic submission of responses. a proposed extension of an information submitted the following information Title: Commercial Invoice. collection that was previously collection request to the Office of OMB Number: 1651–0090. approved. CBP is proposing that this Management and Budget (OMB) for Form Number: N/A. information collection be extended with review and approval in accordance with Abstract: The collection of the no change to the burden hours. This the Paperwork Reduction Act of 1995: Commercial Invoice is necessary for the document is published to obtain Commercial Invoice. This is a proposed proper assessment of duties. The comments form the public and affected extension of an information collection invoice(s) is attached to the CBP Form agencies. This proposed information that was previously approved. CBP is 7501. The information, which is collection was previously published in proposing that this information supplied by the foreign shipper, is used the Federal Register (69 FR 59605– collection be extended with no change to ensure compliance with statues and 59606) on October 5, 2004, allowing for to the burden hours. This document is regulations. a 60-day comment period. This notice published to obtain comments form the Current Actions: There are no changes allows for an additional 30 days for public and affected agencies. This to the information collection. This public comments. This process is proposed information collection was submission is being submitted to extend conducted in accordance with 5 CFR previously published in the Federal the expiration date. 1320.10. Register (69 FR 56447) on September Type of Review: Extension (without DATES: Written comments should be 21, 2004, allowing for a 60-day change). received on or before January 6, 2005. comment period. This notice allows for Affected Public: Businesses, ADDRESSES: Written comments and/or an additional 30 days for public institutions. suggestions regarding the items comments. This process is conducted in Estimated Number of Respondents: contained in this notice, especially the accordance with 5 CFR 1320.10. 46,500,000. estimated public burden and associated DATES: Written comments should be Estimated Time Per Respondent: 10 response time, should be directed to the received on or before January 6, 2005. seconds. Office of Management and Budget, ADDRESSES: Written comments and/or Estimated Total Annual Burden Office of Information and Regulatory suggestions regarding the items Hours: 130,200. Affairs, Attention: Department of

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Homeland Security Desk Officer, DEPARTMENT OF HOUSING AND information is necessary for the proper Washington, DC 20503. Additionally URBAN DEVELOPMENT performance of the functions of the comments may be submitted to OMB via [Docket No. FR–4903–N–97] agency, including whether the facsimile to (202) 395–6974. information will have practical utility; SUPPLEMENTARY INFORMATION: The Notice of Submission of Proposed (2) Evaluate the accuracy of the agency’s Bureau of Customs and Border Information Collection to OMB; estimate of the burden of the proposed Protection (CBP) encourages the general Emergency Comment Request Third- collection of information; (3) Enhance public and affected Federal agencies to Party Documentation Facsimile the quality, utility, and clarity of the submit written comments and Transmittal Form information to be collected; and (4) suggestions on proposed and/or Minimize the burden of the collection of continuing information collection AGENCY: Office of the Chief Information Officer. information on those who are to requests pursuant to the Paperwork respond; including through the use of ACTION: Notice of proposed information Reduction Act of 1995 (Pub. L. 104–13). appropriate automated collection collection. Your comments should address one of techniques or other forms of information the following four points: SUMMARY: The proposed information technology, e.g., permitting electronic (1) Evaluate whether the proposed collection requirement described below submission of responses. collection of information is necessary has been submitted to the Office of for the proper performance of the This Notice also lists the following Management and Budget (OMB) for functions of the agency/component, information: emergency review and approval, as including whether the information will required by the Paperwork Reduction Title of Proposal: Third-Party have practical utility; Act. The Department is soliciting public Documentation Facsimile Transmittal (2) Evaluate the accuracy of the comments on the subject proposal. Form. agencies/components estimate of the This is a request for approval of a Description of Information Collection: burden of the proposed collection of Third-Party Documentation Facsimile information, including the validity of This is a request for approval of a Third- Transmittal form which will be used for Party Documentation Facsimile the methodology and assumptions used; third party certification, and other (3) Enhance the quality, utility, and Transmittal form which will be used for attached documents normally attached clarity of the information to be third party certification, and other to paper submissions of applications. collected; and attached documents normally attached This is intended as an interim solution (4) Minimize the burden of the to paper submissions of applications. until an alternative solution is devised collections of information on those who This intended as an interim solution for submission of these types of are to respond, including the use of until an alternative solution is devised documents. appropriate automated, electronic, for submission of these types of mechanical, or other technological DATES: Comments Due Date: December documents. 17, 2004. collection techniques or other forms of OMB Control Number: 2535— ADDRESSES: Interested persons are information technology, e.g., permitting Pending. electronic submission of responses. invited to submit comments regarding Title: Canadian Border Boat Landing this proposal. Comments must be Agency Form Numbers: HUD form Permit. received within seven (10) days from 96011. OMB Number: 1651–0108. the date of this Notice. Comments Members of Affected Public: Not-for- Form Number: Form I–68. should refer to the proposal by name profit institutions; State, Local or Tribal Abstract: This collection involves and should be sent to: HUD Desk Governments; and Businesses or other information from individuals who Officer, Office of Management and for-profits. desire to enter the United States from Regulatory Affairs, Office of Canada in a small pleasure craft. Management and Budget, New Estimation of the total numbers of Current Actions: This is an extension Executive Office Building, Washington, hours needed to prepare the information of a currently approved information DC 20503. collection including number of collection. FOR FURTHER INFORMATION CONTACT: respondents, frequency of responses, Affected Public: Individuals or Wayne Eddins, Paperwork Reduction and hours of response: An estimation of households. Act Compliance Officer, AYO, the total amount of time needed to Estimated Number of Respondents: Department of Housing and Urban prepare the information collection is six 68,000. Development, 451 Seventh Street, SW., minutes per applicant plus. The Estimated Time Per Respondent: 10 Washington, DC 20410; e-mail potential number of respondents is minutes. [email protected]; telephone 33,000. The frequency of response is Estimated Total Annual Burden (202) 708–2374. This is not a toll-free once per annum. The total public Hours: 11,288. number. Copies of available documents burden is estimated to be 3,300 hours. If additional information is required submitted to OMB may be obtained contact: Tracey Denning, Bureau of Status: New collection. from Mr. Eddins. Customs and Border Protection, 1300 Authority: The Paperwork Reduction Act SUPPLEMENTARY INFORMATION: This Pennsylvania Avenue, NW., Room of 1995, 44 U.S.C. Chapter 35, as amended. 3.2.C, Washington, DC 20229, at (202) Notice informs the public that the U.S. Dated: November 30, 2004. 344–1429. Department of Housing and Urban Development (HUD) has submitted to Wayne Eddins, Dated: November 30, 2004. OMB, for emergency processing. This Departmental Reports Management Officer, Tracey Denning, Notice is soliciting comments from Office of the Chief Information Officer. Agency Clearance Officer, Information members of the public and affecting [FR Doc. 04–26768 Filed 12–6–04; 8:45 am] Services Branch. agencies concerning the proposed BILLING CODE 4210–72–P [FR Doc. 04–26778 Filed 12–6–04; 8:45 am] collection of information to: (1) Evaluate BILLING CODE 4820–02–P whether the proposed collection of

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DEPARTMENT OF HOUSING AND this proposal. Comments should refer to proposed collection of information is URBAN DEVELOPMENT the proposal by name and/or OMB necessary for the proper performance of approval Number (2535–0091) and the functions of the agency, including [Docket No. FR–4903–N–95] should be sent to: HUD Desk Officer, whether the information will have Notice of Submission of Proposed Office of Management and Budget, New practical utility; (2) Evaluate the Information Collection to OMB; HUD Executive Office Building, Washington, accuracy of the agency’s estimate of the DC 20503; fax: (202) 395–6974. Acquisition Regulation (HUDAR) (48 burden of the proposed collection of CFR 24) FOR FURTHER INFORMATION CONTACT: information; (3) Enhance the quality, Wayne Eddins, Reports Management utility, and clarity of the information to AGENCY: Office of the Chief Information Officer, AYO, Department of Housing be collected; and (4) Minimize the Officer, HUD. and Urban Development, 451 Seventh burden of the collection of information ACTION: Notice. Street, SW., Washington, DC 20410; e- on those who are to respond; including mail [email protected]; or through the use of appropriate SUMMARY: The proposed information Lillian Deitzer at automated collection techniques or collection requirement described below [email protected] or other forms of information technology, has been submitted to the Office of telephone (202) 708–2374. This is not a e.g., permitting electronic submission of Management and Budget (OMB) for toll-free number. Copies of available responses. review, as required by the Paperwork documents submitted to OMB may be This notice also lists the following Reduction Act. The Department is obtained from Mr. Eddins or Ms Deitzer information: soliciting public comments on the and at HUD’s Web site at http:// Title of Proposal: HUD Acquisition subject proposal. www5.hud.gov:63001/po/i/icbts/ Regulation (HUDAR) (48 CFR 24). This is a request for continued collectionsearch.cfm. OMB Approval Number: 2535–0091. approval to collect information under SUPPLEMENTARY INFORMATION: This Form Numbers: HUD–770. HUD’s Acquisition Regulations notice informs the public that the Description of the Need for the (HUDAR). HUDAR supplements the Department of Housing and Urban Information and Its Proposed Use: Federal Acquisition Regulation (FAR). Development has submitted to OMB a HUDAR supplements the Federal Information collection required of the request for approval of the information Acquisition Regulation (FAR). public is solely in connection with the collection described below. This notice Information collection required of the procurement process. is soliciting comments from members of public is solely in connection with the DATES: January 6, 2005. the public and affecting agencies procurement process. ADDRESSES: Interested persons are concerning the proposed collection of Frequency of Submission: On invited to submit comments regarding information to: (1) Evaluate whether the occasion, Monthly, Annually.

Number of Annual Hours per respondents responses x response = Burden hours

Reporting Burden ...... 250 8.50 16.69 35,501

Total Estimated Burden Hours: has been submitted to the Office of Street, SW., Washington, DC 20410; e- 35,501. Management and Budget (OMB) for mail [email protected]; or Status: Extension of a currently review, as required by the Paperwork Lillian Deitzer at approved collection. Reduction Act. The Department is [email protected] or Authority: Section 3507 of the Paperwork soliciting public comments on the telephone (202) 708–2374. This is not a Reduction Act of 1995, 44 U.S.C. 35, as subject proposal. toll-free number. Copies of available amended. This is a request to continue the documents submitted to OMB may be collection of information necessary to Dated: November 30, 2004. obtained from Mr. Eddins or Ms Deitzer monitor the use of grant funds for the and at HUD’s Web site at http:// Wayne Eddins, Congregate Housing Services Program www5.hud.gov:63001/po/i/icbts/ Departmental Reports Management Officer, (CHSP) according to statutory, collectionsearch.cfm Office of the Chief Information Officer. regulatory, and administrative [FR Doc. 04–26770 Filed 12–6–04; 8:45 am] SUPPLEMENTARY INFORMATION: This requirements. The Grantees must meet Notice informs the public that the U.S. BILLING CODE 4210–72–P annual requirements. Department of Housing and Urban DATES: Comments Due Date: January 6, Development (HUD) has submitted to 2005. DEPARTMENT OF HOUSING AND OMB a request for approval of the URBAN DEVELOPMENT ADDRESSES: Interested persons are information collection described below. invited to submit comments regarding This Notice is soliciting comments from [Docket No. FR–4903–N–96] this proposal. Comments should refer to members of the public and affecting the proposal by name and/or OMB agencies concerning the proposed Notice of Submission of Proposed approval Number (2502–0485) and collection of information to: (1) Evaluate Information Collection to OMB; should be sent to: HUD Desk Officer, whether the proposed collection of Congregate Housing Services Program Office of Management and Budget, New information is necessary for the proper AGENCY: Office of the Chief Information Executive Office Building, Washington, performance of the functions of the Officer. DC 20503; fax: (202) 395–6974. agency, including whether the ACTION: Notice. FOR FURTHER INFORMATION CONTACT: information will have practical utility; Wayne Eddins, Reports Management (2) Evaluate the accuracy of the agency’s SUMMARY: The proposed information Officer, AYO, Department of Housing estimate of the burden of the proposed collection requirement described below and Urban Development, 451 Seventh collection of information; (3) Enhance

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the quality, utility, and clarity of the This Notice also lists the following information necessary to monitor the information to be collected; and (4) information: use of grant funds for the Congregate Minimize the burden of the collection of Title of Proposal: Congregate Housing Housing Services Program (CHSP) information on those who are to Services Program. according to statutory, regulatory, and respond; including through the use of OMB Approval Number: 2502–0485. administrative requirements. The appropriate automated collection Form Numbers: HUD–90006, HUD– Grantees must meet annual 90198, HUD–91180–A, SF–269. techniques or other forms of information requirements. Description of the Need for the technology, e.g., permitting electronic Information and Its Proposed Use: This Frequency of Submission: On submission of responses. is a request to continue the collection of Occasion, Semi-annually, Annually.

Number of Annual Hours per respondents responses x response = Burden hours

Reporting Burden ...... 75 450 5 2,213

Total Estimated Burden Hours: 2,213. Endangered Species program of the Republic of South Africa, Status: Extension of a currently The public is invited to comment on for the purpose of enhancement of the approved collection. the following applications for a permit survival of the species. Authority: Section 3507 of the Paperwork to conduct certain activities with Applicant: Francisco J. Cardenal, Reduction Act of 1995, 44 U.S.C. 35, as endangered species. This notice is Miami, FL, PRT–096307. amended. provided pursuant to Section 10(c) of Dated: November 30, 2004. the Endangered Species Act of 1973, as The applicant requests a permit to Wayne Eddins, amended (16 U.S.C. 1531, et seq.). import the sport-hunted trophy of one Departmental Reports Management Officer, Written data, comments, or requests for male bontebok (Damaliscus pygargus Office of the Chief Information Officer. copies of these complete applications pygargus) culled from a captive herd [FR Doc. 04–26771 Filed 12–6–04; 8:45 am] should be submitted to the Director maintained under the management (address above). BILLING CODE 4210–72–P program of the Republic of South Africa, Applicant: Mitchel Kalmanson, for the purpose of enhancement of the Maitland, FL, PRT–092552, 092553, survival of the species. 092254, 093176, 093177, and 093178. Marine Mammals DEPARTMENT OF THE INTERIOR The applicant requests permits to temporarily export and re-import six The public is invited to comment on Fish and Wildlife Service captive-born tigers (Panthera tigris) to the following application for a permit to world-wide locations for the purpose of conduct certain activities with marine Receipt of Applications for Permit enhancement of the survival of the mammals. The application was species through conservation education. AGENCY: Fish and Wildlife Service, submitted to satisfy requirements of the Interior. The permit numbers and animals are 092552, Lucas; 092553, Zher Khan; Marine Mammal Protection Act of 1972, ACTION: Notice of receipt of applications 092554, Gengis Khan; 093176, Boris; as amended (16 U.S.C. 1361, et seq.), for permit. 093177, Natasha; 093178, Chiquita. This and the regulations governing marine notification covers activities to be mammals (50 CFR part 18). Written SUMMARY: The public is invited to data, comments, or requests for copies comment on the following applications conducted by the applicant over a three- year period and the import of any of the complete applications or requests to conduct certain activities with for a public hearing on these endangered species and/or marine potential progeny born while outside the United States. applications should be submitted to the mammals. Applicant: Randy Miller, Big Bear City, Director (address above). Anyone DATES: Written data, comments or CA, PRT–018063. requesting a hearing should give requests must be received by January 6, The applicant requests a renewal of specific reasons why a hearing would be 2005. their permit to temporarily export and appropriate. The holding of such a ADDRESSES: Documents and other re-import one female captive-born tiger hearing is at the discretion of the information submitted with these (Panthera tigris) ‘‘Eden’’ to world-wide Director. applications are available for review, locations for the purpose of Applicant: Douglas J. Schippers, West subject to the requirements of the enhancement of the survival of the Olive, MI, PRT–096079. Privacy Act and Freedom of Information species through conservation education. Act, by any party who submits a written This notification covers activities to be The applicant requests a permit to request for a copy of such documents conducted by the applicant over a three- import a polar bear (Ursus maritimus) within 30 days of the date of publication year period and the import of any sport hunted from the Northern Beaufort of this notice to: U.S. Fish and Wildlife potential progeny born while outside Sea polar bear population in Canada for Service, Division of Management the United States. personal use. Authority, 4401 North Fairfax Drive, Applicant: Lloyd B. Alford, Baton Dated: November 19, 2004. Room 700, Arlington, Virginia 22203; Rouge, LA, PRT–095498. Michael S. Moore, fax (703) 358–2281. The applicant requests a permit to FOR FURTHER INFORMATION CONTACT: import the sport-hunted trophy of one Senior Permit Biologist, Branch of Permits, Division of Management Authority, male bontebok (Damaliscus pygargus Division of Management Authority. telephone (703) 358–2104. pygargus) culled from a captive herd [FR Doc. 04–26767 Filed 12–6–04; 8:45 am] SUPPLEMENTARY INFORMATION: maintained under the management BILLING CODE 4310–55–P

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DEPARTMENT OF THE INTERIOR 668dd–668ee)), all lands within the The vegetation is a complex mixture National Wildlife Refuge System are to of spruce forests, mixed woodlands, Fish and Wildlife Service be managed in accordance with an shrub lands, and tussock peatlands that approved Comprehensive Conservation are heavily interspersed with wetlands Notice of Intent To Revise a Plan. Section 304(g) of the Alaska and streams. The landscape provides Comprehensive Conservation Plan and National Interest Lands Conservation valuable habitat for a wide variety of Associated Environmental Impact Act (16 U.S.C. 140hh–3233, 43 U.S.C. fish and wildlife species. Fourteen fish Statement for the Tetlin National 1602–1784) also directs that these plans species, nearly 200 bird species, 44 Wildlife Refuge, Tok, AK be prepared. The Plan guides mammal species, and 1 amphibian AGENCY: Fish and Wildlife Service, management decisions and identifies species are believed to use the Refuge Department of the Interior. goals, long-term objectives, and for at least part of each year. The Tetlin strategies for achieving the purposes of Refuge is one of the most diverse ACTION: Notice of intent. the Refuge. During the planning process, interior refuges in Alaska. The Tanana SUMMARY: The notice advises the public the planning team reviews a wide range Basin represents the northern extent of that the U.S. Fish and Wildlife Service of refuge administrative requirements, the range for many species found in (Service) intends to gather information including conservation of the Refuge’s other parts of North America. A number necessary to revise the Comprehensive fish and wildlife populations and of species which use the Tetlin Refuge Conservation Plan (Plan) and an habitats in their natural diversity; are not found in other Alaska Refuges. associated Environmental Impact facilitation of subsistence use by local The wetlands provide exceptional Statement, pursuant to the National residents and access for traditional nesting habitat for many species Environmental Policy Act and its activities; and conservation of resource including 18 species of ducks. Large implementing regulations, for Tetlin values, including cultural resources, numbers of tundra and trumpeter swans National Wildlife Refuge, Tok, Alaska. wilderness, and wild rivers. The final use the Refuge during migration. The The Service is furnishing this notice in revised Plan will detail the programs, Refuge also has a rapidly expanding compliance with the National Wildlife activities, and measures necessary to breeding population of trumpeter Refuge System Administration Act of best administer the Refuge to protect swans. these values and to fulfill the purposes 1966, as amended, and with Service Caribou, moose, and Dall’s sheep are of the Refuge. The Comprehensive planning policy to administer other the large herbivores found on the Conservation Plan and associated agencies and the public of our Refuge. Caribou and moose are found Environmental Impact Statement will intentions and to obtain suggestions and seasonally throughout Tetlin Refuge. describe and evaluate a range of information on the scope of issues to be Dall’s sheep are limited to the rugged reasonable alternatives and the addressed in the environmental Mentasta Mountains in the southwest anticipated impacts of each. Public document. corner. Both black and brown bears input into the planning process is Special mailings, newspaper articles, occur on the Refuge. essential. The Alaska National Interests Land and other media announcements will The plan will provide other agencies Conservation Act of 1980 (Section inform people of opportunities to and the public with information to 302(8)(B)) sets forth the following major provide written and oral input facilitate understanding of the desired purposes for which Tetlin Refuge was throughout the planning process. Public conditions for the Refuge and how the established and is to be managed: meetings will be held in communities Service will implement management near the Refuge (Tok, Northway, Tetlin, strategies. (i) To conserve fish and wildlife and Tanacross) and in the city of The Service will prepare an populations and habitats in their natural Fairbanks. The Draft and Final Plans Environmental Impact Statement in diversity including, but not limited to, and associated Environmental Impact accordance with procedures for waterfowl, raptors and other migratory Statement will be available for viewing implementing the National birds, furbearers, moose, caribou and downloading at http:// Environmental Policy Act of 1969 (42 (including participation in cooperative alaska.fws.gov/nwr/planning. U.S.C. 4321–4370d). ecological studies and management of ADDRESSES: Address comments, The Tetlin National Wildlife Refuge the Chisana caribou herd), salmon and questions, and requests to Mikel Haase, covers approximately seven hundred Dolly Varden; Planning Team Leader, U.S. Fish and thousand acres. It is located northeast of (ii) To fulfill the international treaty Wildlife Service, 1011 East Tudor Rd., the Alaska Range, adjacent to the U.S.- obligations of the United States with MS–231, Anchorage, AK 99503, or Canada border in the headwaters of the respect to fish and wildlife and their [email protected]. Tanana River. It is bordered to the south habitats; by Wrangell-St. Elias National Park and (iii) To provide, in a manner FOR FURTHER INFORMATION CONTACT: Preserve, Canada to the east, and the consistent with the purposes set forth in Mikel Haase, Planning Team Leader, Alaska Highway along its northeast subparagraphs (i) and (ii) the U.S. Fish and Wildlife Service, 1011 border. opportunity for continued subsistence East Tudor Rd., MS–231, Anchorage, The Refuge lies within the Nabesna/ uses by local residents; AK 99503, phone number (907) 786– _ _ Chisana River Basin, in the Upper (iv) To ensure, to the maximum extent 3402 or fw7 tetlin [email protected]. Tanana Valley. Formed by repeated practicable and in a manner consistent Additional information concerning glaciations, this large, flat basin is filled with the purposes set forth in paragraph Tetlin Refuge and the Conservation Plan with sediments deposited in moraines (i), water quality and necessary water can be found at http://alaska.fws.gov/ and outwash plains, creating a quantity with the refuge; and nwr. landscape dominated by lakes, ponds, (v) To provide, in a manner consistent SUPPLEMENTARY INFORMATION: By Federal and wetland tundra. Most of the Refuge with subparagraphs (i) and (ii) law (National Wildlife Refuge System is rolling lowlands, however the opportunities for interpretation and Administration Act of 1966, as amended Mentasta Mountains, in the southwest environmental education, particularly by the National Wildlife Refuge System corner, are rugged, glacier carved peaks in conjunction with any adjacent State Improvement Act of 1997 (16 U.S.C. reaching elevations of 8,000 feet. visitor facilities.

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The Comprehensive Conservation DEPARTMENT OF THE INTERIOR ACTION: Notice of Filing of Plat of Plan for Tetlin National Wildlife Refuge Survey; Missouri. was completed in 1987. It is being Bureau of Land Management revised consistent with section 304(g) of SUMMARY: The Bureau of Land [ES–960–1420–BJ–TRST] ES–052518, Management (BLM) will file the plat of the Alaska National Interest Lands Group No. 155, Minnesota Conservation Act, the National Wildlife survey of the lands described below in Refuge System Improvement Act of Eastern States: Filing of Plat of Survey the BLM-Eastern States, Springfield, 1997, and U.S. Fish and Wildlife Virginia, 30 calendar days from the date AGENCY: Service planning policy. Bureau of Land Management, of publication in the Federal Register. Interior. Dated: November 22, 2004. FOR FURTHER INFORMATION CONTACT: ACTION: Notice of Filing of Plat of Bureau of Land Management, 7450 Rowan Gould, Survey; Minnesota. Boston Boulevard, Springfield, Virginia Regional Director, U.S. Fish and Wildlife 22153. Attn: Cadastral Survey. Service, Anchorage, Alaska. SUMMARY: The Bureau of Land [FR Doc. 04–26784 Filed 12–6–04; 8:45 am] Management (BLM) will file the plat of SUPPLEMENTARY INFORMATION: This survey was requested by the U.S. Army BILLING CODE 4310–55–M survey of the lands described below in the BLM-Eastern States, Springfield, Corps of Engineers. Virginia, 30 calender days from the date The lands we surveyed are: DEPARTMENT OF THE INTERIOR of publication in the Federal Register. Fifth Principal Meridian, Missouri FOR FURTHER INFORMATION CONTACT: T. 51 N., Rs. 2 and 3 E. Fish and Wildlife Service Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia The plat of survey represents the Denial of Permit for Marine Mammals 22153. Attn: Cadastral Survey. dependent resurvey of portions of the township boundaries, portions of the AGENCY: Fish and Wildlife Service, SUPPLEMENTARY INFORMATION: This subdivisional lines and the survey of the Interior. survey was requested by the Bureau of Lock and Dam No. 25 acquisition Indian Affairs. ACTION: Notice of denial of permit for boundary, in Township 51 North, marine mammals. The lands we surveyed are: Fifth Principal Meridian, Minnesota Ranges 2 and 3 East, of the Fifth Principal Meridian, in the State of SUMMARY: T. 144 N., R. 39 W. The following permit was Missouri, and was accepted on October denied. The plat of survey represents the dependent resurvey of a portion of the 29, 2004. ADDRESSES: Documents and other south and west boundaries and a We will place a copy of the plat we information submitted with this portion of the subdivisional lines; and described in the open files. It will be application are available for review, the survey of the subdivision of sections made available to the public as a matter subject to the requirements of the 2, 4, 11, 13–15, 18–28, and 32–36, of information. Privacy Act and Freedom of Information Township144 North, Range 39 West, of Dated: October 29, 2004 Act, by any party who submits a written the Fifth Principal Meridian, Minnesota, Stephen D. Douglas, request for a copy of such documents to: and was accepted November 17, 2004. Chief Cadastral Surveyor. U.S. Fish and Wildlife Service, Division We will place a copy of the plat we [FR Doc. 04–26802 Filed 12–6–04; 8:45 am] of Management Authority, 4401 North described in the open files. It will be BILLING CODE 4310–GJ–P Fairfax Drive, Room 700, Arlington, available to the public as a matter of Virginia 22203; fax 703/358–2281. information. FOR FURTHER INFORMATION CONTACT: If BLM receives a protest against this Division of Management Authority, survey, as shown on the plat, prior to INTERNATIONAL TRADE telephone 703/358–2104. the date of the official filing, we will COMMISSION SUPPLEMENTARY INFORMATION: On April stay the filing pending our [Investigation No. 731–TA–653 (Second 22, 2004, a notice was published in the consideration of the protest. Review)] Federal Register (69 FR 21858), that an We will not officially file the plat application had been filed with the Fish until the day after we have accepted or Sebacic Acid From China and Wildlife Service by Peter A. Larsen, dismissed all protests and they have become final, including decisions on AGENCY: International Trade Newcastle, WY, for a permit (PRT– Commission. 081356) to import a polar bear (Ursus appeals. ACTION: Cancellation of the hearing in maritimus) sport hunted from the Baffin Dated: November 17, 2004. the full five-year review concerning the Bay polar bear population in Canada for Stephen D. Douglas, antidumping duty order on sebacic acid personal use. Chief Cadastral Surveyor. from China. Notice is hereby given that on [FR Doc. 04–26801 Filed 12–6–04; 8:45 am] November 3, 2004, as authorized by the BILLING CODE 4310–GJ–P DATES: Effective Date: December 3, 2004. provisions of the Marine Mammal Protection Act of 1972, as amended (16 FOR FURTHER INFORMATION CONTACT: Jai Motwane (202) 205–3176, Office of U.S.C. 1361, et seq.), the Fish and DEPARTMENT OF THE INTERIOR Wildlife Service denied the requested Investigations, U.S. International Trade permit. Bureau of Land Management Commission, 500 E Street SW., Washington, DC 20436. Hearing- Dated: November 19, 2004. [ES–960–1910–BJ–4489; ES–052452, Group impaired persons can obtain Michael S. Moore, No. 38, Missouri] information on this matter by contacting Senior Permit Biologist, Branch of Permits, Eastern States: Filing of Plat of Survey the Commission’s TDD terminal on Division of Management Authority. (202) 205–1810. Persons with mobility [FR Doc. 04–26766 Filed 12–6–04; 8:45 am] AGENCY: Bureau of Land Management, impairments who will need special BILLING CODE 4310–55–P Interior. assistance in gaining access to the

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Commission should contact the Office the agenda for the open Parole Energy Systems, Inc., Palm Court, of the Secretary at (202) 205–2000. Commission meeting: (1) Approval of Florida. General information concerning the minutes from a previous Commission An active certification covering the Commission may also be obtained by meeting; (2) reports from the Chairman, petitioning group of workers is already accessing its internet server (http:// Commissioners, Chief of Staff, and in effect (TA–W–55,407, as amended). www.usitc.gov). The public record for Commission sections; and (3) a proposal Consequently, further investigation in this investigation may be viewed on the to extend the video conference this case would serve no purpose, and Commission’s electronic docket (EDIS) procedure to institutional revocation the investigation has been terminated. at http://edis.usitc.gov. hearings. Signed in Washington, DC this 18th day of SUPPLEMENTARY INFORMATION: AGENCY CONTACT: Thomas W. November 2004. Hutchison, Chief of Staff, United States Background Richard Church, Parole Commission, (301) 492–5990. Certifying Officer, Division of Trade On July 28, 2004 (69 FR 45075), the Dated: December 1, 2004. Adjustment Assistance. Commission published a notice in the Rockne Chickinell, [FR Doc. 04–26825 Filed 12–6–04; 8:45 am] Federal Register scheduling a full five- General Counsel, United States Parole BILLING CODE 4510–30–M year review concerning the antidumping Commission. duty order on sebacic acid from China. [FR Doc. 04–26909 Filed 12–3–04; 10:03 am] The schedule provided for a public DEPARTMENT OF LABOR hearing on December 7, 2004. A request BILLING CODE 4410–01–M to appear at the hearing was filed by Employment and Training Arizona Chemicals (‘‘Arizona’’) on Administration November 26, 2004. On December 2, DEPARTMENT OF LABOR 2004, Arizona withdrew its request. As [TA–W–55,933] Employment and Training no other requests to appear at the Administration Artisan Software Tools Inc. Portland, hearing were filed, the Commission OR; Notice of Termination of determined to cancel the public hearing [TA–W–55,936] Investigation on sebacic acid from China. The Commission further determined that no 3M Center Coated Abrasives Division Pursuant to Section 221 of the Trade earlier announcement of this St. Paul, MN; Notice of Termination of Act of 1974, as amended, an cancellation was possible. Investigation investigation was initiated on November For further information concerning Pursuant to Section 221 of the Trade 4, 2004 in response to a worker petition this review, see the Commission’s notice Act of 1974, as amended, an filed by a company official on behalf of cited above and the Commission’s Rules investigation was initiated on November workers at Artisan Software Tools Inc., of Practice and Procedure, part 201, 5, 2004 in response to a petition filed by Portland, Oregon. subparts A through E (19 CFR part 201), a state workforce representative on All workers were separated from the and part 207, subparts A and F (19 CFR behalf of workers at 3M Center, Coated subject firm more than one year before part 207). Abrasives Division, St. Paul, Minnesota. the date of the petition. Section 223 (b) (Authority: This review is being conducted The petitioner has requested that the of the Act specifies that no certification under authority of title VII of the Tariff Act petition be withdrawn. Consequently, may apply to any worker whose last of 1930; this notice is published pursuant to the investigation has been terminated. separation occurred more than one year sections 201.35 and 207.62 of the before the date of the petition. Commission’s rules.) Signed at Washington, DC this 18th day of November, 2004. Consequently, further investigation in this case would serve no purpose, and Issued: December 3, 2004. Linda G. Poole, By order of the Commission. the investigation has been terminated. Certifying Officer, Division of Trade Marilyn R. Abbott, Adjustment Assistance. Signed at Washington, DC this 19th day of November 2004. Secretary to the Commission. [FR Doc. E4–3516 Filed 12–6–04; 8:45 am] Richard Church, [FR Doc. 04–26949 Filed 12–8–04; 8:45 am] BILLING CODE 4510–30–P BILLING CODE 7020–02–P Certifying Officer, Division of Trade Adjustment Assistance. DEPARTMENT OF LABOR [FR Doc. E4–3517 Filed 12–6–04; 8:45 am] PAROLE COMMISSION BILLING CODE 4510–30–P Employment and Training Public Announcement; Pursuant to the Administration DEPARTMENT OF LABOR Government in the Sunshine Act [TA–W–55–964] (Public Law 94–409) (5 U.S.C. Section 552b) Accountemps, Leased Workers at Employment and Training Delta Energy Systems, Inc., Formerly Administration AGENCY HOLDING MEETING: Department of Known as Ascom Energy Systems, [TA–W–55,955] Justice, United States Parole Inc., Palm Court, FL; Notice of Commission. Termination of Investigation Atlas Copco Compressors Inc., TIME AND DATE: 9:30 a.m., Wednesday, Holyoke, MA; Notice of Termination of December 8, 2004. Pursuant to section 221 of the Trade Investigation Act of 1974, an investigation was PLACE: 5550 Friendship Boulevard, 4th initiated on November 9, 2004 in Pursuant to section 221 of the Trade Floor, Chevy Chase, Maryland 20815. response to a worker petition which was Act of 1974, as amended, an STATUS: Open. filed on behalf of workers at investigation was initiated on November MATTERS TO BE CONSIDERED: The Accountemps, leased to Delta Energy 9, 2004, in response to a worker petition following matters have been placed on Systems, Inc., formerly known as Ascom filed on behalf of workers at Atlas

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Copco Compressors Inc., Holyoke, DEPARTMENT OF LABOR under Section 223 of the Trade Act of 1974, Massachusetts. and are also eligible to apply for alternative Employment and Training trade adjustment assistance under section The petitioners have requested that Administration 246 of the Trade Act of 1094. the petition be withdrawn. Consequently, the investigation has [TA–W–55,407] Signed in Washington, DC this 18th day of been terminated. November 2004. Delta Energy Systems, Inc. Formerly Richard Church, Signed in Washington, DC this 19th day of Known as Ascom Energy Systems, Inc. November, 2004. Certifying Officer, Division of Trade Including Leased Workers of Randstad Adjustment Assistance. Richard Church, North America And Accountemps, [FR Doc. E4–3519 Filed 12–6–04; 8:45 am] Certifying Officer, Division of Trade Palm Coast, FL; Amended Certification Adjustment Assistance. Regarding Eligibility To Apply for BILLING CODE 4510–30–P [FR Doc. E4–3518 Filed 12–6–04; 8:45 am] Worker Adjustment Assistance and Alternative Trade Adjustment BILLING CODE 4510–30–P DEPARTMENT OF LABOR Assistance In accordance with section 223 of the Employment and Training DEPARTMENT OF LABOR Trade Act of 1974 (19 U.S.C. 2273) the Administration Department of Labor issued a Employment and Training Certification of Eligibility to Apply for Administration [A–W–55,636] Worker Adjustment Assistance and Alternative Trade Adjustment Notice of Affirmative Determination [TA–W–55,511] Assistance on August 17, 2004, Regarding Application for applicable to workers of Delta Energy Reconsideration; Fleetguard Cherry Electrical Products, a Division Systems, Inc., including leased workers Corporation Subsidiary of Cummins of Cherry Corporation, Including of Randstad North America, Palm Coast, Corporation; Cookeville, TN Leased Workers From QPS Staffing, Florida. The notice was published in the Pleasant Prairie, WI; Dismissal of Federal Register on September 8, 2004 By application of November 12, 2004, Application for Reconsideration (69 FR 54321). The certification was the Tennessee AFL–CIO Labor Council amended on September 30, 2004, to requested administrative Pursuant to 29 CFR 90.18(C) an include workers of the subject firm reconsideration of the Department’s application for administrative operating in various other states. The Negative Determination Regarding reconsideration was filed with the notice was published in the Federal Eligibility for workers and former Director of the Division of Trade Register on October 12, 2004 (69 FR workers of the subject firm to Apply for Adjustment Assistance for workers at 60668). Alternative Trade Adjustment Cherry Electrical Products, a division of At the request of the State agency, the Assistance (ATAA). Cherry Corporation, including leased Department reviewed the certification The determination was signed on workers from QPS Staffing, Pleasant for workers of the subject firm. The October 22, 2004. The Notice was workers are engaged in the production Prairie, Wisconsin. The application published in the Federal Register on of power conversion products. contained no new substantial November 12, 2004 (69 FR 65463). information which would bear New information shows that leased importantly on the Department’s workers of Accountemps were The denial of ATAA was based on the determination. Therefore, dismissal of employed at Delta Energy Systems, Inc., finding that workers of the workers’ firm the application was issued. formerly known as Ascom Energy possess skills that are easily transferable Systems, Inc., at the Palm Coast, Florida to another position in the local TA–W–55,511; Cherry Electrical Products, location of the subject firm. commuting area. a division of Cherry Corporation, including Based on these findings, the The Department has carefully Leased workers from QPS Staffing, Pleasant Department is amending this Prairie, Wisconsin (November 24, 2004) reviewed the petitioner’s request for certification to include leased workers reconsideration and has determined that Signed at Washington, DC this 29th day of of Accountemps working at Delta the Department will conduct further November 2004. Energy Systems, Inc., formerly known as investigation based on new information Timothy Sullivan, Ascom, Palm Coast, Florida. provided. Director, Division of Trade Adjustment The intent of the Department’s Conclusion Assistance. certification is to include all workers of Delta Energy Systems, Inc., formerly [FR Doc. E4–3525 Filed 12–6–04; 8:45 am] known as Ascom Energy Systems, Inc. After careful review of the BILLING CODE 4510–30–P who was adversely affected by increased application, I conclude that the claim is imports. of sufficient weight to justify The amended notice applicable to reconsideration of the Department of TA–W–55,407 is hereby issued as Labor’s prior decision. The application follows: is, therefore, granted. All workers of Delta Energy Systems, Inc., Signed at Washington, DC, this 18th day of formerly known as Ascom Energy Systems, November 2004. Inc., including on-site leased workers of Linda G. Poole, Randstad North America and Accountemps, Certifying Officer, Division of Trade Palm Coast, Florida, who became totally or Adjustment Assistance. partially separated from employment on or after July 14, 2003, through August 17, 2006, [FR Doc. E4–3524 Filed 12–6–04; 8:45 am] are eligible to apply for adjustment assistance BILLING CODE 4510–30–P

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DEPARTMENT OF LABOR DEPARTMENT OF LABOR are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974. Employment and Training Employment and Training Signed in Washington, DC this 17th day of Administration Administration November 2004. [TA–W–54,758] Linda G. Poole, [TA–W–55,261] Certifying Officer, Division of Trade Technical Associates Leased Workers Adjustment Assistance. Sony Electronics, Inc. AOEM Service at Brown & Williamson Tobacco [FR Doc. E4–3521 Filed 12–6–04; 8:45 am] Center Farmington Hills, MI; Notice of Corporation, Currently Known as R.J. BILLING CODE 4510–30–P Negative Determination on Reynolds Tobacco Corporation, an Reconsideration Operating Subsidiary of Reynolds American, Inc. Macon, GA; Amended DEPARTMENT OF LABOR On October 7, 2004, the Department Certification Regarding Eligibility To Employment and Training issued an Affirmative Determination Apply for Worker Adjustment Administration Regarding Application for Assistance [TA–W–55,761] Reconsideration for the workers and In accordance with Section 223 of the former workers of the subject firm. The Trade Act of 1974 (19 U.S.C. 2273), as Notice was published in the Federal Technicon Engineering Leased amended, the Department of Labor Workers at Brown & Williamson Register on October 25, 2004 (69 FR issued a Certification of Eligibility to Tobacco Corporation, Currently 62301). The Department initially denied Apply for Worker Adjustment Known as R.J. Reynolds Tobacco Trade Adjustment Assistance (TAA) and Assistance on June 23, 2004, applicable Corporation, an Operating Subsidiary Alternate Trade Adjustment Assistance to workers of Technical Associates of Reynolds American, Inc., Macon, (ATAA) to workers of Sony Electronics, employed at Brown & Williamson GA; Amended Certification Regarding Inc., AOEM Service Center, Farmington Tobacco Corporation, Macon Georgia. Eligibility To Apply for Worker Hills, Michigan, because the workers The notice will be published soon in the Adjustment Assistance did not produce an article but Federal Register. performed repair services on consumer At the request of the State agency, the In accordance with Section 223 of the electronics. Department reviewed the certification Trade Act of 1974 (19 U.S.C. 2273), as amended, the Department of Labor In the request for reconsideration, the for workers of the subject firm. The subject firm workers were leased issued a Certification of Eligibility to company official alleged that the subject workers providing research and Apply for Worker Adjustment facility is engaged in production development, and training support Assistance on October 28, 2004, because the workers repair and services at the Macon, Georgia facility of applicable to workers of Technicon refurbish Sony products. Brown & Williamson Tobacco Engineering employed at Brown & During the reconsideration Corporation which produces cigarettes. Williamson Tobacco Corporation, investigation, the Department requested New information provided by the Macon, Georgia. The notice will be that the subject company provide company shows that Brown & published soon in the Federal Register. additional information regarding the Williamson Tobacco Corporation is At the request of the State agency, the allegations as well as complete a currently known as R.J. Reynolds Department reviewed the certification questionnaire. Tobacco Company, an operating for workers of the subject firm. The subject firm workers were leased The investigation revealed that the subsidiary of Reynolds American, Inc. as of July 30, 2004. Information also workers providing research and subject worker group primarily repaired shows that workers separated from development, and training support consumer electronic and neither employment at the subject firm had services at the Macon, Georgia facility of produced refurbished consumer their wages reported under a separate Brown & Williamson Tobacco electronics nor assembled electronics unemployment insurance (UI) tax Corporation which produces cigarettes. goods during the relevant time period. account for R.J. Reynolds Tobacco New information provided by the company shows that Brown & Conclusion Company. Accordingly, the Department is Williamson Tobacco Corporation is After reconsideration, I affirm the amending the certification to properly currently known as R.J. Reynolds original notice of negative reflect this matter. Tobacco Company, an operating determination of eligibility to apply for The intent of the Department’s subsidiary of Reynolds American, Inc. worker adjustment assistance for certification is to include all workers of as of July 30, 2004. Information also workers and former workers of Sony Technical Associates who were leased shows that workers separated from Electronics, Inc., AOEM Service Center, at Brown & Williamson Tobacco employment at the subject firm had their wages reported under a separate Farmington Hills, Michigan. Corporation, Macon, Georgia, were adversely affected by increased imports. unemployment insurance (UI) tax Signed at Washington, DC, this 19th day of The amended notice applicable to account for R.J. Reynolds Tobacco November 2004. TA–W–54,758 is hereby issued as Company. Linda G. Poole, follows: Accordingly, the Department is amending the certification to properly Certifying Officer, Division of Trade Workers employed by Technical Adjustment Assistance. reflect this matter. Associates, working at Brown & Williamson The intent of the Department’s [FR Doc. E4–3520 Filed 12–6–04; 8:45 am] Tobacco Corporation, currently known as R.J. certification is to include all workers of BILLING CODE 4510–30–P Reynolds Tobacco Company, an operating subsidiary of Reynolds American, Inc., Technicon Engineering who were leased Macon, Georgia, who became totally or at Brown & Williamson Tobacco partially separated from employment on or Corporation, Macon, Georgia, were after March 18, 2003, through June 23, 2006, adversely affected by increased imports.

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The amended notice applicable to Facsimile: If your comments, documents are available on OSHA’s TA–W–55,761 is hereby issued as including any attachments, are 10 pages Webpage. Since all submissions become follows: or fewer, you may fax them to the OSHA public, private information such as a Workers employed by Technicon Docket Office at (202) 693–1648. social security number should not be Engineering, working at Brown & Williamson Electronic: You may submit submitted. comments through the Internet at Tobacco Corporation, currently known as R.J. II. Background Reynolds Tobacco Company, an operating http://dockets.osha.gov/. Following subsidiary of Reynolds American, Inc., instructions on the OSHA Webpage for The Department of Labor, as part of its Macon, Georgia, who became totally or submitting comments. continuing effort to reduce paperwork partially separated from employment on or Docket: For access to the docket to and respondent (i.e., employer) burden, after September 24, 2003, through October read or download comments or conducts a preclearance consultation 28, 2006, are eligible to apply for adjustment background materials, such as the program to provide the public with an assistance under Section 223 of the Trade Act opportunity to comment on proposed of 1974. complete Information Collection Request (ICR) (containing the and continuing information-collection Signed in Washington, DC this 16th day of Supporting Statement, OMB–83–I Form, requirements in accordance with the November 2004. and attachments), go to OSHA’s Paperwork Reduction Act off 1995 Richard Church, Webpage at http://OSHA.gov. (PRA–95) (44 U.S.C. 3506(c)(2)(A)). Certifying Officer, Division of Trade Comments, submissions and the ICR are This program ensures that Adjustment Assistance. available for inspection and copying at information is in the desired format, [FR Doc. E4–3522 Filed 12–6–04; 8:45 am] the OSHA Docket Office at the address reporting burden (time and cost) is BILLING CODE 4510–30–P above. You may also contact Todd minimal, collection instruments are Owen at the address below to obtain a understandable, and OSHA’s estimate of copy of the ICR. the information-collection burden is DEPARTMENT OF LABOR (For additional information on accurate. The Occupational Safety and submitting comments, please see the Health Act of 1970 (the Act) (29 U.S.C. Occupational Safety and Health 651 et seq.) authorizes information Administration ‘‘Public Participation’’ heading in the SUPPLEMENTARY INFORMATION section of collection by employers as necessary or this document). appropriate for enforcement of the Act [Docket No. ICR–1218–0179 (2005)] or for developing information regarding FOR FURTHER INFORMATION CONTACT: the causes and prevention of Methylene Chloride Standard; Todd Owen, Directorate of Standards occupational injuries, illnesses, and Extensions of the Office of and Guidance, OSHA, Room N–3609, accidents (29 U.S.C. 657). The Management and Budget’s (OMB) U.S. Department of Labor, 200 information-collection requirements Approval of the Information-Collection Constitution Avenue, NW., Washington, specified in the Methylene Chloride (Paperwork) Requirements DC 20210; telephone (202) 693–2222. Standard protect employees from the AGENCY: Occupational Safety and Health SUPPLEMENTARY INFORMATION: adverse health effects that may result Administration (OSHA), Labor. I. Submission of Comments on This from their exposure to methylene ACTION: Request for public comment. Notice and Internet Access to chloride. The requirements in the MC Comments and Submissions Standard include employee exposure SUMMARY: OSHA solicits comments monitoring, notifying employees of their concerning its request for an extension You may submit comments and MC exposures, administering medical of the information-collection supporting materials in response to this examinations to employees, providing requirements contained in the document by (1) hard copy, (2) FAX examining physicians with specific Methylene Chloride Standard (29 CFR transmission (facsimile), or (3) program and employee information, 1910.1052). electronically through the OSHA ensuring that employees receive a copy Webpage. of their medical examination results, DATES: Comments must be submitted by Because of security-related problems, the following dates: training employees on the hazards of there may be a significant delay in the MC, maintaining employees’ exposure- Hard Copy: Your comments must be receipt of comments by regular mail. submitted (postmarked or received) by monitoring and medical examination Please contact the OSHA Docket Office records for specific periods, and February 7, 2005. at (202) 693–2350 (TTY (877) 889–5627) Facsimile and electronic providing access to these records by for information about security OSHA, the National Institute of transmission: Your comments must be procedures concerning the delivery of received by February 7, 2005. Occupational Safety and Health, the materials by express delivery, hand affected employees, and their ADDRESSES: You may submit comments, delivery and messenger service. authorized representatives. identified by OSHA Docket No. ICR– All comments, submissions and 1218–0179 (2004), by any of the background documents are available for III. Special Issues for Comment following methods: inspection and copying at the OSHA OSHA has a particular interest in Regular mail, express delivery, hand- Docket Office at the above address. comments on the following issues: delivery, and messenger service: Submit Comments and submissions posted on • Whether the proposed information- your comments and attachments to the OSHA’s Webpage are available at collection requirements are necessary OSHA Docket Office, Room N–2625, http://www.OSHA.gov. Contact the for the proper performance of the U.S. Department of Labor, 200 OSHA Docket Office for information Agency’s functions, including whether Constitution Avenue, NW., Washington, about material not available through the the information is useful; DC 20210; telephone (202) 693–2350 OSHA Webpage and for assistance using • The accuracy of OSHA’s estimate of (OSHA’s TTY number is (887) 889– the Webpage to locate docket the burden (time and cost) of the 5627). The OSHA Docket Office and submissions. information-collection requirements, Department of Labor hours of operation Electronic copies of this Federal including the validity of the are 8:15 a.m. to 4:45 p.m., ET. Register notice as well as other relevant methodology and assumptions used;

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• The quality, utility, and clarity of DEPARTMENT OF LABOR (For additional information on the information collected; and submitting comments, please see the Occupational Safety and Health • Ways to minimize the burden on ‘‘Public Participation’’ heading in the Administration employees who must comply; for SUPPLEMENTARY INFORMATION section of example, by using automated other [Docket No. ICR–1218–0137 (2005)] this document.) technological information-collection FOR FURTHER INFORMATION CONTACT: and -transmission techniques. Design of Cave-in Protection Systems; Todd Owen or Theda Kenney, Extension of the Office of Management Directorate of Standards and Guidance, IV. Proposed Actions and Budget’s (OMB) Approval of OSHA, Room N–3609, U.S. Department Information-Collection Requirements of Labor, 200 Constitution Avenue, OSHA is proposing to extend the (Paperwork) NW., Washington, DC 20210; telephone information-collection requirements (202) 693–2222. contained in the Methylene Chloride AGENCY: Occupational Safety and Health SUPPLEMENTARY INFORMATION: Standard (29 CFR 1910.1052). The Administration (OSHA), Labor. Agency will summarize the comments ACTION: Request for public comment. I. Submission of Comments on This submitted in response to this notice and Notice and Internet Access to SUMMARY: will include this summary in the OSHA solicits comments Comments and Submissions concerning its request for an extension request to OMB to extend the approval of the information-collection You may submit comments and of the information-collection requirements contained in 29 CFR supporting materials in response to this requirements contained in the Standard. 1926.652 Requirements for Protective document by (1) hard copy, (2) FAX Type of Review: Extension of Systems. transmission (facsimile), or (3) currently approved information- electronically through the OSHA DATES: Comments must be submitted by collection requirements. Webpage. the following dates: Because of security-related problems, Title: Methylene Chloride (29 CFR Hard Copy: Your comments must be there may be a significant delay in the 1910.1052). submitted (postmarked or received) by receipt of comments by regular mail. OMB Number: 1218–0179. February 7, 2005. Please contact the OSHA Docket Office Facsimile and electronic Affected Public: Business or other for- at (202) 693–2350 (TTY (877) 889–5627) transmission: Your comments must be for information about security profit; not-for-profit institutions; Federal received by February 7, 2005. government; State, local or tribal procedures concerning the delivery of ADDRESSES: You may submit comments, governments. materials by express delivery, hand identified by OSHA Docket No. ICR– delivery and messenger service. Number of Respondents: 88,623. 1218–0137 (2005), by any of the All comments, submissions and Frequency of Response: Occasionally. following methods: background documents are available for Regular mail, express delivery, hand- Total Responses: 217,753. inspection and copying at the OSHA delivery, and messenger service: Submit Docket Office at the above address. Average Time per Response: Varies your comments and attachments to the Comments and submissions posted on from 1 hour for administering a medical OSHA Docket Office, Room N–2625, OSHA’s Webpage are available at examination to 5 minutes to maintain an U.S. Department of Labor, 200 http://www.OSHA.gov. Contact the employee’s medical or exposure record. Constitution Avenue, NW., Washington, OSHA Docket Office for information Estimated Total Burden Hours: 64,142 DC 20210; telephone (202) 693–2350 about materials not available through hours. (OSHA’s TTY number is (877) 889– the OSHA Webpage and for assistance 5627). The OSHA Docket Office and using the Webpage to locate docket Estimated Cost (Operation and Department of Labor hours of operation submissions. Maintenance): $15,942,530. are 8:15 a.m. to 4:45 p.m., ET. Electronic copies of this Federal IV. Authority and Signature Facsimile: If your comments, Register notice as well as other relevant including any attachments, are 10 pages documents are available on OSHA’s John L. Henshaw, Assistant Secretary or fewer, you may fax them to the OSHA Webpage. of Labor for Occupational Safety and Docket Office at (202) 693–1648. Health, directed the preparation of this Electronic: You may submit II. Background notice. The authority for this notice is comments through the Internet at The Department of Labor, as part of its the Paperwork Reduction Act of 1995 http://ecomments.osha,gov/. Follow continuing effort to reduce paperwork (44 U.S.C. 3506), Secretary of Labor’s instructions on the OSHA Webpage for and respondent (i.e., employer) burden, Order No. 5–2002 (67 FR 65008). submitting comments. conducts a preclearance consultation Docket: For access to the docket to program to provide the public with an Signed at Washington, DC, on November read or download comments or opportunity to comment on proposed 30, 2004. background materials, such as the and continuing information-collection John L. Henshaw, complete Information Collection requirements in accordance with the Assistant Secretary of Labor. Request (ICR) (containing the Paperwork Reduction Act of 1995 [FR Doc. 04–26805 Filed 12–6–04; 8:45 am] Supporting Statement, OMB–83–I Form, (PRA–95) (44 U.S.C. 3506(c)(2)(A)). BILLING CODE 4510–26–M and attachments), go to OSHA’s This program ensures that Webpage at http://OSHA.gov. information is in the desired format, Comments, submissions and the ICR are reporting burden (time and costs) is available for inspection and copying at minimal, collection instruments are the OSHA Docket Office at the address clearly understood, and OSHA’s above. You may also contact Theda estimate of the information collection Kenney or Todd Owen at the address burden is accurate. The Occupational below to obtain a copy of the ICR. Safety and Health Act of 1970 (the Act)

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(29 U.S.C. 651 et seq.) authorizes configurations of the materials used in V. Authority and Signature information collection by employers as the protective system and the identity of John L. Henshaw, Assistant Secretary necessary or appropriate for the registered professional engineer who of Labor for Occupational Safety and enforcement of the Act or for developing approved the design. Health, directed the preparation of this Each of these provisions requires information regarding the causes and notice. The authority for this notice is employers to maintain a copy of the prevention of occupational injuries, the Paperwork Reduction Act of 1995 documents described in these options at illnesses, and accidents (29 U.S.C. 657). (44 U.S.C. 3506), and Secretary of Paragraphs (b) and (c) of § 1926.652 the jobsite during construction. After Labor’s Order No. 5–2002 (67 FR (‘‘Requirements for Protective Systems’’; construction is complete, employers 65008). the ‘‘Standard’’) contain paperwork may store the documents offsite requirements that impose burden hours provided they make them available to Signed at Washington, DC on November or costs on employers. These paragraphs an OSHA compliance officer on request. 30, 2004. require employers to use protective These documents provide both the John L. Henshaw, systems to prevent cave-ins during employer and the compliance officer Assistant Secretary of Labor. excavation work; these systems include with information needed to determine if [FR Doc. 04–26806 Filed 12–6–04; 8:45 am] sloping the side of the trench, benching the selection and design of a protective BILLING CODE 4510–26–M the soil away from the excavation, or system are appropriate to the excavation using a support system or shield (such work, thereby assuring employees of as a trench box). The standard specifies maximum protection against cave-ins. NATIONAL SCIENCE FOUNDATION allowable configuration and slopes for III. Special Issues for Comment excavations, and provides appendices to Notice of Permit Application Received assist employers in designing protective OSHA has a particular interest in Under the Antarctic Conservation Act systems. However, paragraphs (b)(3) and comments on the following issues: of 1978 (b)(4) of the Standard permit employers • Whether the information-collection to design sloping or benching systems requirements are necessary for the AGENCY: National Science Foundation. based on tabulated data (Option 1), or to proper performance of the Agency’s ACTION: Notice of permit applications use a design approved by a registered functions, including whether the received under the Antarctic professional engineer (Option 2). information is useful; Conservation Act. Under Option 1, employers must • The accuracy of the Agency’s provide the tabulated data in a written estimate of the burden (time and costs) SUMMARY: Notice is hereby given that form that also identifies the registered of the information-collection the National Science Foundation (NSF) professional engineer who approved the requirements, including the validity of has received a waste management data and the parameters used to select the methodology and assumptions used; permit application for operation of the sloping or benching system drawn • The quality, utility, and clarity of the remote field camps during a helicopter from the data, as well as the limitations information collected; and flight from Patriot Hills to South Pole • of the data (including the magnitude Ways to minimize the burden on and return. The application is submitted and configuration of slopes determined employers who must comply; for to NSF pursuant to regulations issued to be safe); the document must also example, by using automated or other under the Antarctic Conservation Act of provide any explanatory information technological information-collection 1978. necessary to select the correct benching and -transmission techniques. DATES: Interested parties are invited to system based on the data. Option 2 IV. Proposed Actions submit written data, comments, or requires employers to develop a written views with respect to this permit OSHA is proposing to extend the design approved by a registered application by January 6, 2005. Permit information-collection requirements professional engineer. The design applications may be inspected by contained in 29 CFR 1926, Subpart Q, information must include the magnitude interested parties at the Permit Office, and configuration of the slopes Concrete and Masonry Construction. The Agency will summarize the address below. determined to be safe, and the identity ADDRESSES: Comments should be of the registered professional engineer comments submitted in response to this notice and will include this summary in addressed to Permit Office, Room 755, who approved the design. Office of Polar Programs, National Paragraphs (c)(2), (c)(3), and (c)(4) the request to OMB to extend the Science Foundation, 4201 Wilson allow employers to design support approval of the information-collection Boulevard, Arlington, Virginia 22230. systems, shield systems, and other requirements contained in the Standard. protective systems based on tabulated Type of Review: Extension of FOR FURTHER INFORMATION CONTACT: data provided by a system manufacturer currently approved information- Nadene Kennedy at the above address or (Option 3) or obtained from other collection requirements. (703) 292–8030. sources and approved by a registered Title: Design of Cave-in Protection SUPPLEMENTARY INFORMATION: NSF’s professional engineer (Option 4); they System. Antarctic Waste Regulation, 45 CFR Part OMB Number: 1218–0137. can also use a design approved by a 671, requires all U.S. citizens and Affected Public: Business or other for- registered professional engineer (Option entities to obtain a permit for the use or profit. 5). If they select Option 3, employers Number of Respondents: 20,000. release of a designated pollutant in must complete a written form that Frequency of Response: On occasion. Antarctica, and for the release of waste provides the manufacturer’s Total Responses: 20,000. in Antarctica. NSF has received a permit specifications, recommendations, and Average Time per Response: Two application under this Regulation for limitations, as well as any deviations hours to obtain information on the the operation of an expedition to approved by the manufacturer. The design of cave-in protection systems. Antarctica. Pole-to-Pole plans for two paperwork requirements of Option 4 are Estimated Total Burden Hours: 20,000 pilots to fly a Robinson R44 Raven II the same as for Option 1. Option 5 hours. Helicopter from Ushuaia, Argentina to requires a written form that provides a Estimated Cost (Operation and the South Pole and return to Patriot plan indicating the sizes, types, and Maintenance): $721,100. Hills, where the helicopter will be

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loaded onto an Illyushin IL–76 for the Status: Public and Closed. Week of January 3, 2005—Tentative return flight to Punta Arenas, Chile. The Matters To Be Considered: Week of There are no meetings scheduled for Illyushin is operated by Antarctic December 6, 2004 the Week of January 3, 2005. Logistics and Expeditions (ALE). Tuesday, December 7, 2004 Refueling operations will take place at 9:30 a.m. Briefing on Equal Week of January 10, 2005—Tentative pre-existing fuel caches. Employment Opportunity (EEO) There are no meetings scheduled for Application for the permit is made by: Program (Public Meeting) (Contact: the Week of January 10, 2005. Steve Brooks, Pole-To-Pole, 1202 Pierce Corenthis Kelley, (301) 415–7380). *The schedule for Commission 100 Street, Clearwater, Florida, 96161. This meeting will be webcast live at meetings is subject to change on short Location: Patriot Hills, and South the Web address—http://www.nrc.gov. notice. To verify the status of meetings Geographic Pole. Wednesday, December 8, 2004 call (recording)—(301) 415–1292. Dates: January 1, 2005 to January 31, 12:55 p.m. Affirmation Session Contact person for more information: 2005. (Public Meeting) (Tentative) Dave Gamberoni, (301) 415–1651. a. Motion to Quash OI Subpoena Nadene G. Kennedy, * * * * * (Tentative) The NRC Commission Meeting Permit Officer. b. Duke Energy Corp. (Catawba Schedule can be found on the Internet [FR Doc. 04–26826 Filed 12–6–04; 8:45 am] Nuclear Station, Units 1 and 2); at: http://www.nrc.gov/what-we-do/ BILLING CODE 7555–01–M Intervenor’s Motion for policy-making/schedule.html. Reconsideration of CLI–04–29 (Tentative) * * * * * NATIONAL SCIENCE FOUNDATION c. SECY–04–0180—Hydro Resources, The NRC provides reasonable Inc. (Rio Rancho, New Mexico) accommodation to individuals with Notice of Permits Issued Under the Review of LBP–04–3 (Financial disabilities where appropriate. If you Antarctic Conservation Act of 1978 Assurance) (Tentative) need a reasonable accommodation to AGENCY: National Science Foundation. d. SECY–04–0190—Final Rule: participate in these public meetings, or need this meeting notice or the ACTION: Notice of permits issued under Security Requirements for Portable Gauges Containing Byproduct transcript or other information from the the Antarctic Conservation of 1978, public meetings in another format (e.g., Public Law 95–541. Material (RIN 3150–AH06) (Tentative) braille, large print), please notify the SUMMARY: The National Science e. SECY–04–0208—Louisiana Energy NRC’s Disability Program Coordinator, Foundation (NSF) is required to publish Services, L.P. (National Enrichment August Spector, at (301) 415–7080, notice of permits issued under the Facility) (Tentative) TDD: (301) 415–2100, or by e-mail at Antarctic Conservation Act of 1978. f. SECY–04–0212—Dominion Nuclear [email protected]. Determinations on This is required notice. Connecticut, Inc., (Millstone requests for reasonable accommodation will be made on a case-by-case basis. FOR FURTHER INFORMATION CONTACT: Nuclear Power Station, Units 2 and Nadene G. Kennedy, Permit Office, 3), Docket Nos. 50–336–LR & 50– * * * * * Office of Polar Programs, Rm. 755, 423–LR; LBP–04–15, 60 NRC 81, This notice is distributed by mail to National Science Foundation, 4201 LBP–04–22 (Tentative) several hundred subscribers; if you no Wilson Boulevard, Arlington, VA 22230. 1 p.m. Briefing on Status of Davis longer wish to receive it, or would like Besse Lessons Learned Task Force to be added to the distribution, please SUPPLEMENTARY INFORMATION: On Recommendations (Public Meeting) contact the Office of the Secretary, September 20, 2004, the National (Contact: John Jolicoeur, (301) 415– Washington, DC 20555 (301–415–1969). Science Foundation published a notice 1724) In addition, distribution of this meeting in the Federal Register of a Waste This meeting will be webcast live at notice over the Internet system is Management permit application the Web address—http://www.nrc.gov. available. If you are interested in received. A Waste Management permit Thursday, December 9, 2004 receiving this Commission meeting was issued on November 30, 2004 to the 2 p.m. Briefing on Reactor Safety and schedule electronically, please send an following applicant: Ralph Fedor, Peter Licensing Activities (Public electronic message to [email protected]. 1st Expedition, Permit No.: 2005 WM– Meeting) (Contact: Steve Koenick, 003. 301–415–1239). Dave Gamberoni, Office of the Secretary. Nadene G. Kennedy, This meeting will be webcast live at [FR Doc. 04–26899 Filed 12–3–04; 9:27 am] Permit Officer. the Web address—http://www.nrc.gov. BILLING CODE 7590–01–M [FR Doc. 04–26827 Filed 12–6–04; 8:45 am] Week of December 13, 2004—Tentative BILLING CODE 7555–01–M Tuesday, December 14, 2004 1 p.m. Briefing on Emergency NUCLEAR REGULATORY Preparedness Program Initiatives COMMISSION NUCLEAR REGULATORY (Public Meeting) (Contact: Nader COMMISSION Mamish, (301) 415–1086). Biweekly Notice; Applications and This meeting will be webcast live at Amendments to Facility Operating Sunshine Act Meeting the Web address—http://www.nrc.gov. Licenses Involving No Significant Hazards Considerations Agency Holding the Meeting: Nuclear Week of December 20, 2004—Tentative Regulatory Commission. I. Background There are no meetings scheduled for Date: Weeks of December 6, 13, 20, 27, the Week of December 20, 2004. Pursuant to section 189a.(2) of the January 3, 10, 2004. Atomic Energy Act of 1954, as amended Place: Commissioners’ Conference Week of December 27, 2004—Tentative (the Act), the U.S. Nuclear Regulatory Room, 11555 Rockville Pike, Rockville, There are no meetings scheduled for Commission (the Commission or NRC Maryland. the Week of December 27, 2004. staff) is publishing this regular biweekly

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notice. The Act requires the Commission may issue the amendment accessible from the Agencywide Commission publish notice of any prior to the expiration of the 30-day Documents Access and Management amendments issued, or proposed to be comment period should circumstances System’s (ADAMS) Public Electronic issued and grants the Commission the change during the 30-day comment Reading Room on the Internet at the authority to issue and make period such that failure to act in a NRC Web site, http://www.nrc.gov/ immediately effective any amendment timely way would result, for example in reading-rm/doc-collections/cfr/. (Note: to an operating license upon a derating or shutdown of the facility. Public access to ADAMS has been determination by the Commission that Should the Commission take action temporarily suspended so that security such amendment involves no significant prior to the expiration of either the reviews of publicly available documents hazards consideration, notwithstanding comment period or the notice period, it may be performed and potentially the pendency before the Commission of will publish in the Federal Register a sensitive information removed. Please a request for a hearing from any person. notice of issuance. Should the check the NRC Web site for updates on This biweekly notice includes all Commission make a final No Significant the resumption of ADAMS access.) If a notices of amendments issued, or Hazards Consideration Determination, request for a hearing or petition for proposed to be issued from November 5, any hearing will take place after leave to intervene is filed within 60 2004, through November 24, 2004. The issuance. The Commission expects that days, the Commission or a presiding last biweekly notice was published on the need to take this action will occur officer designated by the Commission or November 23, 2004 (69 FRN 68180). very infrequently. by the Chief Administrative Judge of the Written comments may be submitted Notice of Consideration of Issuance of Atomic Safety and Licensing Board by mail to the Chief, Rules and Amendments to Facility Operating Panel, will rule on the request and/or Directives Branch, Division of Licenses, Proposed No Significant petition; and the Secretary or the Chief Administrative Services, Office of Hazards Consideration Determination, Administrative Judge of the Atomic Administration, U.S. Nuclear Regulatory and Opportunity for a Hearing Safety and Licensing Board will issue a Commission, Washington, DC 20555– notice of a hearing or an appropriate The Commission has made a 0001, and should cite the publication order. proposed determination that the date and page number of this Federal As required by 10 CFR 2.309, a following amendment requests involve Register notice. Written comments may petition for leave to intervene shall set no significant hazards consideration. also be delivered to Room 6D22, Two forth with particularity the interest of Under the Commission’s regulations in White Flint North, 11545 Rockville the petitioner in the proceeding, and 10 CFR 50.92, this means that operation Pike, Rockville, Maryland, from 7:30 how that interest may be affected by the of the facility in accordance with the a.m. to 4:15 p.m. Federal workdays. results of the proceeding. The petition proposed amendment would not (1) Copies of written comments received should specifically explain the reasons involve a significant increase in the may be examined at the Commission’s why intervention should be permitted probability or consequences of an Public Document Room (PDR), located with particular reference to the accident previously evaluated; or (2) at One White Flint North, Public File following general requirements: (1) The create the possibility of a new or Area O1F21, 11555 Rockville Pike (first name, address and telephone number of different kind of accident from any floor), Rockville, Maryland. (Note: the requestor or petitioner; (2) the accident previously evaluated; or (3) Public access to ADAMS has been nature of the requestor’s/petitioner’s involve a significant reduction in a temporarily suspended so that security right under the Act to be made a party margin of safety. The basis for this reviews of publicly available documents to the proceeding; (3) the nature and proposed determination for each may be performed and potentially extent of the requestor’s/petitioner’s amendment request is shown below. sensitive information removed. Please property, financial, or other interest in The Commission is seeking public check the NRC Web site for updates on the proceeding; and (4) the possible comments on this proposed the resumption of ADAMS access.) The effect of any decision or order which determination. Any comments received filing of requests for a hearing and may be entered in the proceeding on the within 30 days after the date of petitions for leave to intervene is requestor’s/petitioner’s interest. The publication of this notice will be discussed below. petition must also set forth the specific considered in making any final Within 60 days after the date of contentions which the petitioner/ determination. Within 60 days after the publication of this notice, the licensee requestor seeks to have litigated at the date of publication of this notice, the may file a request for a hearing with proceeding. licensee may file a request for a hearing respect to issuance of the amendment to Each contention must consist of a with respect to issuance of the the subject facility operating license and specific statement of the issue of law or amendment to the subject facility any person whose interest may be fact to be raised or controverted. In operating license and any person whose affected by this proceeding and who addition, the petitioner/requestor shall interest may be affected by this wishes to participate as a party in the provide a brief explanation of the bases proceeding and who wishes to proceeding must file a written request for the contention and a concise participate as a party in the proceeding for a hearing and a petition for leave to statement of the alleged facts or expert must file a written request for a hearing intervene. Requests for a hearing and a opinion which support the contention and a petition for leave to intervene. petition for leave to intervene shall be and on which the petitioner/requestor Normally, the Commission will not filed in accordance with the intends to rely in proving the contention issue the amendment until the Commission’s ‘‘Rules of Practice for at the hearing. The petitioner/requestor expiration of 60 days after the date of Domestic Licensing Proceedings’’ in 10 must also provide references to those publication of this notice. The CFR Part 2. Interested persons should specific sources and documents of Commission may issue the license consult a current copy of 10 CFR 2.309, which the petitioner is aware and on amendment before expiration of the 60- which is available at the Commission’s which the petitioner/requestor intends day period provided that its final PDR, located at One White Flint North, to rely to establish those facts or expert determination is that the amendment Public File Area 01F21, 11555 Rockville opinion. The petition must include involves no significant hazards Pike (first floor), Rockville, Maryland. sufficient information to show that a consideration. In addition, the Publicly available records will be genuine dispute exists with the

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applicant on a material issue of law or transmission to 301–415–3725 or by e- 1. Does the proposed amendment involve fact. Contentions shall be limited to mail to [email protected]. A copy a significant increase in the probability or matters within the scope of the of the request for hearing and petition consequences of an accident previously amendment under consideration. The for leave to intervene should also be evaluated? contention must be one which, if sent to the attorney for the licensee. Response: No. The proposed change is only related to a proven, would entitle the petitioner/ Nontimely requests and/or petitions postulated fuel handling accident inside the requestor to relief. A petitioner/ and contentions will not be entertained Reactor Building occurring during fuel requestor who fails to satisfy these absent a determination by the loading and refueling activities. The requirements with respect to at least one Commission or the presiding officer of proposed change does not increase the contention will not be permitted to the Atomic Safety and Licensing Board probability of a fuel handling accident in that participate as a party. that the petition, request and/or the the proposed change deals with the results of Those permitted to intervene become contentions should be granted based on such an accident, not the cause of such an parties to the proceeding, subject to any a balancing of the factors specified in 10 accident. The proposed change does not limitations in the order granting leave to CFR 2.309(a)(1)(i)–(viii). increase the consequences of an accident intervene, and have the opportunity to For further details with respect to this previously evaluated in that the TMI Unit 1 action, see the application for Alternative Source Term has been previously participate fully in the conduct of the reviewed and approved by the NRC [Nuclear hearing. amendment which is available for Regulatory Commission], and this proposed If a hearing is requested, and the public inspection at the Commission’s change is consistent with the assumptions of Commission has not made a final PDR, located at One White Flint North, [that] previous analysis. The Alternative determination on the issue of no Public File Area 01F21, 11555 Rockville Source Term analysis for the Fuel Handling significant hazards consideration, the Pike (first floor), Rockville, Maryland. Accident [i]nside the Reactor Building takes Commission will make a final Publicly available records will be no credit for the closure of the containment determination on the issue of no accessible from the Agencywide equipment hatch opening or for a filtered significant hazards consideration. The Documents Access and Management release. Previous analyses of external events final determination will serve to decide System’s (ADAMS) Public Electronic were reviewed and the proposed [change when the hearing is held. If the final Reading Room on the Internet at the does] not affect the conclusions of these analyses. Therefore the proposed change determination is that the amendment NRC Web site, http://www.nrc.gov/ does not involve a significant increase in the request involves no significant hazards reading-rm/adams.html. (Note: Public probability or consequences of an accident consideration, the Commission may access to ADAMS has been temporarily previously evaluated. issue the amendment and make it suspended so that security reviews of 2. Does the proposed amendment create immediately effective, notwithstanding publicly available documents may be the possibility of a new or different kind of the request for a hearing. Any hearing performed and potentially sensitive accident from any accident previously held would take place after issuance of information removed. Please check the evaluated? the amendment. If the final NRC Web site for updates on the Response: No. determination is that the amendment resumption of ADAMS access.) If you The proposed change does not affect nor request involves a significant hazards do not have access to ADAMS or if there create a different [kind] of fuel handling accident. The proposed change is consistent consideration, any hearing held would are problems in accessing the with the existing licensing basis accident take place before the issuance of any documents located in ADAMS, contact analysis for a postulated fuel handling amendment. the NRC PDR Reference staff at 1–800– accident inside containment during fuel A request for a hearing or a petition 397–4209, 301–415–4737 or by e-mail to loading and refueling operations. The for leave to intervene must be filed by: [email protected]. proposed change does not involve any (1) First class mail addressed to the structure, system, or component relied upon Office of the Secretary of the AmerGen Energy Company, LLC, to mitigate any design basis accident. The Commission, U.S. Nuclear Regulatory Docket No. 50–289, Three Mile Island revised operations are consistent with the Commission, Washington, DC 20555– Nuclear Station, Unit 1 (TMI–1), fuel handling accident analysis. Therefore, 0001, Attention: Rulemaking and Dauphin County, Pennsylvania the proposed change does not create the Adjudications Staff; (2) courier, express Date of amendment request: October possibility of a new or different kind of accident from any accident previously mail, and expedited delivery services: 20, 2004. evaluated. Office of the Secretary, Sixteenth Floor, Description of amendment request: 3. Does the proposed amendment involve One White Flint North, 11555 Rockville The proposed amendment would revise a significant reduction in a margin of safety? Pike, Rockville, Maryland, 20852, the containment hatch closure Response: No. Attention: Rulemaking and requirement in the Technical Previously approved analysis demonstrates Adjudications Staff; (3) e-mail Specifications (TSs) during fuel that the resultant dose consequences are well addressed to the Office of the Secretary, handling and refueling operations. within the appropriate acceptance criteria. U.S. Nuclear Regulatory Commission, Specifically, the requirement of TS 3.8.6 The proposed change is bounded by the [email protected]; or (4) facsimile that the containment equipment hatch previously approved analysis, and thus the transmission addressed to the Office of margin of safety, as defined by 10 CFR 50.67 remain closed with a minimum of 4 and Regulatory Guide 1.183, is maintained. the Secretary, U.S. Nuclear Regulatory bolts securing it in place is replaced Maintaining the capability to close the Commission, Washington, DC, with the requirement that the containment equipment hatch opening Attention: Rulemakings and equipment hatch be capable of being following an evacuation of the containment Adjudications Staff at (301) 415–1101, closed during fuel handling and would further reduce the dose consequences verification number is (301) 415–1966. refueling operations. in the event of a fuel handling accident A copy of the request for hearing and Basis for proposed no significant inside containment and provides additional petition for leave to intervene should hazards consideration determination: margin to the calculated doses. Therefore, the also be sent to the Office of the General As required by 10 CFR 50.91(a), the proposed change does not involve a Counsel, U.S. Nuclear Regulatory licensee has provided its analysis of the significant reduction in [a] margin of safety. Commission, Washington, DC 20555– issue of no significant hazards The NRC staff has reviewed the 0001, and it is requested that copies be consideration, which is presented licensee’s analysis and, based on this transmitted either by means of facsimile below: review, it appears that the three

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standards of 10 CFR 50.92(c) are proposed change, nor does the change Criterion 1: Does the proposed amendment satisfied. Therefore, the NRC staff involve a physical alteration of the plant. involve a significant increase in the proposes to determine that the Therefore, the proposed change does not probability or consequences of an accident amendment request involves no create the possibility of a new or different previously evaluated? [kind] of accident from any accident Response: No. significant hazards consideration. previously evaluated. The spray nozzles and the associated Attorney for licensee: Thomas S. 3. Would not involve a significant containment spray systems are designed to O’Neill, Associate General Counsel, reduction in [a] margin of safety. perform accident mitigation functions only. AmerGen Energy Company, LLC, 4300 The fire protection requirements were The QSS [quench spray system] and RSS Winfield Road, Warrenville, IL 60555. removed from the Technical Specifications in [recirculation spray system] and associated NRC Section Chief: Richard J. Laufer. accordance with Generic Letter 88–12 in components are not considered as initiators Amendment Nos. 227 and 201, with the of any analyzed accidents. The proposed Calvert Cliffs Nuclear Power Plant, Inc., exception of the change to the Operating change does not modify any plant equipment Docket Nos. 50–317 and 50–318, Calvert License’s fire protection license condition. and only changes the frequency for Cliffs Nuclear Power Plant, Unit Nos. 1 The proposed administrative change will performance of a surveillance test which and 2, Calvert County, Maryland require an evaluation be performed to does not impact any failure modes that could determine the need for prior NRC approval lead to an accident. Removing the testing Date of amendment request: July 13, for changes to the Fire Protection Program. details from the surveillance does not change 2004. No margin of safety is impacted by the the ability of the spray nozzles to function as Description of amendment request: proposed administrative change. assumed and therefore there is no affect on The proposed amendment would revise Therefore, the proposed change does not the consequence of any accident. Also the the fire protection license condition involve a significant reduction in a margin of proposed change does not impact the safety. consistent with the guidance provided capability of the QSS and RSS to perform accident mitigation functions and therefore in Generic Letter 88–12, ‘‘Removal of The NRC staff has reviewed the licensee’s analysis and, based on this does not impact the consequences of an Fire Protection Requirements from accident. Based on this discussion, the Technical Specifications.’’ review, it appears that the three proposed amendment does not increase the Basis for proposed no significant standards of 10 CFR 50.92(c) are probability or consequence of an accident hazards consideration determination: satisfied. Therefore, the NRC staff previously evaluated. As required by 10 CFR 50.91(a), the proposes to determine that the Criterion 2: Does the proposed amendment licensee has provided its analysis of the amendment request involves no create the possibility of a new or different issue of no significant hazards significant hazards consideration. kind of accident from any accident consideration, which is presented Attorney for licensee: James M. Petro, previously evaluated? Response: No. below: Jr., Esquire, Counsel, Constellation Energy Group, Inc., 750 East Pratt Street, The QSS and RSS are not being physically 1. Would not involve a significant increase 5th floor, Baltimore, MD 21202. modified and there is no impact on the in the probability or consequences of an NRC Section Chief: Richard J. Laufer. capability of the systems to perform accident accident previously evaluated. mitigation functions. No system setpoints are The proposed license amendment is an Dominion Nuclear Connecticut, Inc., et being modified and no changes are being administrative change. The proposed change al., Docket No. 50–423, Millstone Power made to the method in which borated water will revise the fire protection license Station, Unit No. 3, New London is delivered to the spray nozzles. The testing condition consistent with the guidance County, Connecticut. requirements imposed by this proposed provided in Generic Letter 88–12. This change to check for nozzle blockage revision to the fire protection license Date of amendment request: following activities that could cause nozzle condition was to be made at the time the fire September 7, 2004. blockage do not introduce new failure modes protection requirements were relocated from Description of amendment request: for the system. By removing the testing the Technical Specifications to licensee The proposed changes would allow details from the surveillance requirement, controlled documents. However, this change performance of testing for nozzle additional flexibility in the testing was not requested, nor granted in License containment spray blockage to be based methodology is allowed for verifying the Amendment Request dated December 4, nozzles are unobstructed and assists in 1996, approved in Amendment Nos. 227 and on the occurrence of activities that ensuring operability of the systems. The 201. Therefore, the necessary change was not could cause nozzle blockage rather than proposed amendment does not introduce reflected in the Operating Licenses. a fixed periodic basis. Currently, the accident initiators or malfunctions that This administrative request does not testing for nozzle blockage is performed would cause a new or different kind of impact the probability or consequences of an every 10 years and Dominion Nuclear accident. Therefore, the proposed accident previously evaluated. The Connecticut, Inc. (DNC) proposes to amendment does not create the possibility of incorporation of the requested change change this frequency to ‘‘following a new or different kind of accident from any requires that an evaluation be performed to maintenance that could cause nozzle accident previously evaluated. determine the need for prior NRC approval blockage’’. In addition, specific details Criterion 3: Does the proposed amendment for changes to the Fire Protection Program. involve a significant reduction in a margin of Changes to administrative programs will limiting the testing method to an air or safety? result from the addition of this condition in smoke test that are currently part of the Response: No. the Operating License. However, no changes surveillance requirements would be The proposed change does not change or to the facility or the way it is operated are removed. The Technical Specification introduce any new setpoints at which expected to result from this change. Bases section would be updated with mitigating functions are initiated. No changes Therefore, this proposed change does not applicable spray nozzle testing to the design parameters of the QSS and RSS involve a significant increase in the information and will be expanded to are being proposed. No changes in system probability or consequences of an accident include visual inspection. operation are being proposed by this change previously evaluated. Basis for proposed no significant that would impact an established safety 2. Would not create the possibility of a new hazards consideration determination: margin. The proposed change modifies the or different kind of accident from any frequency for verification of nozzle accident previously evaluated. As required by 10 CFR 50.91(a), the operability in such a way that continued high The proposed change is administrative. licensee has provided its analysis of the confidence exists for the containment spray This request does not involve a change in the issue of no significant hazards systems to functions as designed. In addition, operation of the plant, and no new accident consideration, which is presented removing specific testing details from the initiation mechanism is created by the below: surveillance does not affect the ability of the

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spray nozzles to function as designed. it is lifted from the spent fuel pit, and will revise the minimum TS volumes Therefore, based on the above, the proposed lowered into the truck bay. The cask is never associated with the DG FOST. The change amendment does not involve a significant carried over spent fuel in the spent fuel pit. continues to assure that each DG can provide reduction in a margin of safety. Therefore, the change does not create the on-site power in the event of an accident and In summary, DNC concludes that the possibility of a new or different kind of thereby assist in the mitigation of the proposed amendment does not represent a accident from any accident previously accident. significant hazards consideration under the evaluated. The proposed change to the five day full standards set forth in 10 CFR 50.92(c). 3. The [IP2] FSB gantry crane has been load fuel oil volume results in a usable volume 37,000 gallons of fuel oil. The The NRC staff has reviewed the installed to comply with the single-failure- proof requirements of NUREG–0554 and proposed change removes the unusable licensee’s analysis and, based on this NRC-approved Ederer Topical Report EDR–1, volume (760 gallons) and other conservatism review, it appears that the three Revision 3, dated October 8, 1982. The (240 gallons) that were included in the standards of 10 CFR 50.92(c) are installation provides additional load carrying current TS. The fuel oil volume continues to satisfied. Therefore, the NRC staff capability up to 110 tons and additional allow for a runtime of 5 days at full load with proposes to determine that the safety features to prevent a cask drop. The the removal of this conservatism. amendment request involves no safety margins provided by the new crane These changes will not affect the capability significant hazards consideration. prevent failure of the crane or any lifting of the AC [alternate current] Sources to devices associated with it. The power the systems required to safely Attorney for licensee: Lillian M. shutdown the plant. The proposed changes Cuoco, Senior Nuclear Counsel, implementation of NUREG–0612 general guidelines for the FSB gantry crane provides are not accident initiators nor do they Dominion Nuclear Connecticut, Inc., further assurance that safe load paths, adversely affect accident initiators or Waterford, CT 06141–5127. procedures, crane operator training, and precursors. These changes do not affect the NRC Section Chief: Daniel S. Collins, crane inspection and maintenance activities mitigation of any accident nor do they Acting Section Chief. will be established to ensure crane operation adversely affect structures, systems, or is performed in a consistently reliable components that are utilized for the Entergy Nuclear Operations, Docket No. manner. mitigation of any analyzed events. The 50–247, Indian Point Nuclear Therefore, operation of the facility in proposed changes will have no affect on the Generating Unit No. 2, Westchester accordance with the proposed amendment radiological consequences of any accident. County, New York would not involve a significant reduction in The proposed changes do not affect the [a] margin of safety. source term, containment isolation, or Date of amendment request: radiological release assumptions used in the November 1, 2004. The NRC staff has reviewed the evaluation of radiological consequences. Description of amendment request: licensee’s analysis and, based on this Therefore, the proposed change does not The proposed amendment would allow review, it appears that the three involve a significant increase in the the use of a new gantry crane as part of standards of 10 CFR 50.92(c) are probability or consequences of an accident the cask handling system in the fuel satisfied. Therefore, the NRC staff previously evaluated. storage building (FSB) for moving spent proposes to determine that the 2. Does the proposed change create the possibility of a new or different kind of fuel casks up to 110 tons into and out amendment request involves no accident from any accident previously of the spent fuel pit. significant hazards consideration. evaluated? Basis for proposed no significant Attorney for licensee: Mr. John Fulton, Response: No. hazards consideration determination: Assistant General Counsel, Entergy Fuel oil is not an accident initiator. As required by 10 CFR 50.91(a), the Nuclear Operations, Inc., 440 Hamilton Therefore, the possibility of a new or licensee has provided its analysis of the Avenue, White Plains, NY 10601. different kind of accident will not be created issue of no significant hazards NRC Section Chief: Richard J. Laufer. in relationship to the proposed changes to the TS. No modifications are proposed to the consideration, which is presented Entergy Operations Inc., Docket No. 50– below: existing fuel oil storage system that would 382, Waterford Steam Electric Station, alter the design function or the ability of the 1. The proposed amendment would allow Unit 3, St. Charles Parish, Louisiana DG to perform its safety function. the use of the new [IP2] FSB gantry crane for Therefore, the proposed change will not loads up to 110 tons, and the new crane will Date of amendment request: October create the possibility of a new or different prevent the load from being dropped given a 29, 2004. kind of accident from any accident single malfunction or failure of a portion of Description of amendment request: previously evaluated. the crane. The handling of a loaded spent The proposed change to the Technical 3. Does the proposed change involve a fuel cask is below the maximum load that the Specification (TS) assures that sufficient significant reduction in a margin of safety? crane is designed to handle. fuel oil inventories are available in the Response: No. This change does not increase the Emergency Diesel Generator (DG) Fuel The proposed change to the 7-day time probability of an accident previously Oil Storage Tank (FOST) to support the dependent fuel oil volume results in an evaluated because the probability of a load Extended Power Uprate (EPU) increase in volume to accommodate fuel oil drop is eliminated. The new crane system is consumption needed to support the EPU. designed in accordance with NUREG–0554 consistent with the current licensing The reduced volume associated with the 5- and Ederer’s Generic Licensing Topical basis. day full load volume is equivalent to less Report EDR–1 (NP)–A, that if a portion of the Basis for proposed no significant than one hour of runtime and does not result crane lifting devices malfunctions or fails, hazards consideration determination: in a significant reduction in a margin of the load will move a limited distance As required by 10 CFR 50.91(a), the safety because the calculational method downward prior to backup restraints licensee has provided its analysis of the results in a conservative estimate of the becoming engaged. The change does not issue of no significant hazards amount of fuel that would be needed during increase the consequences of an accident. consideration, which is presented a design bases accident. Therefore, operation of the facility in below: The proposed change does not result in a accordance with the proposed amendment change of the design bases for the DG or its would not involve a significant increase in 1. Does the proposed change involve a support systems. The system will continue to the probability or consequences of an significant increase in the probability or provide a reliable source of power for safe accident previously evaluated. consequences of an accident previously shutdown of the reactor, assuming the single 2. The process for transporting a cask with evaluated? failure of one of the DGs. Independence, the new crane is limited from the FSB truck Response: No. redundancy, and testability are maintained bay floor to the cask pit area of the spent fuel The proposed change, which accounts for such that the required safety function can be pool. Once a cask is loaded with spent fuel, the fuel oil consumption related to the EPU, performed by either DG train.

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Therefore, the proposed change does not Safety Analysis Report], the possibility of a compliance with TS Table 3.7–3, when an involve a significant reduction in a margin of tornado reaching Waterford 3 and causing Ultimate Heat Sink (UHS) fan is inoperable safety. damage to plant systems, structures and due to its associated train of UHS being inoperable. The determination of ambient The NRC staff has reviewed the components, including the DCT fans, is a design basis event considered in the FSAR. temperature conditions will continue to be licensee’s analysis and, based on this The probability of a tornado-generated required when an UHS fan is inoperable with review, it appears that the three missile strike on the DCT components was the associated train of UHS operable. There standards of 10 CFR 50.92(c) are analyzed using the NRC [Nuclear Regulatory are no plant modifications or design changes satisfied. Therefore, the NRC staff Commission] Staff approved probability proposed. proposes to determine that the method TORMIS. TORMIS showed that the The proposed revision to TS Table 3.7–3 amendment request involves no change from essentially relying on DCT fans ensures consistency with the revisions to the significant hazards consideration. with cooling coils under the missile grating TS Actions. This is an administrative change. The above changes also do not have any Attorney for licensee: N.S. Reynolds, to relying on all operable DCT fans during a tornado watch is acceptable and represents impact on plant systems nor do they have Esquire, Winston & Strawn, 1400 L an acceptably low probability of occurrence any impact on the way plant systems are Street NW., Washington, DC 20005– of tornado generated missile strikes on the operated. Therefore, the proposed changes do 3502. DCTs. On this basis, the proposed change is not create the possibility of a new or different NRC Section Chief: Michael K. Webb, not considered to constitute a significant kind of accident. Acting. increase in the probability of occurrence or 3. Does the proposed change involve a the consequences of an accident. significant reduction in a margin of safety? Entergy Operations Inc., Docket No. 50– The proposed change to TS Action 3.7.4.d Response: No. 382, Waterford Steam Electric Station, eliminates an unnecessary requirement, to The proposed changes do not involve a Unit 3 (Waterford 3), St. Charles Parish, determine ambient conditions and verify significant reduction in a margin of safety. Louisiana compliance with TS Table 3.7–3, when an The existing licensing basis for Waterford 3 with respect to the design basis event of a Date of amendment request: Ultimate Heat Sink (UHS) fan is inoperable due to its associated train of UHS being tornado reaching the plant, generating November 5, 2004. inoperable. The determination of ambient missiles, and directing them toward the DCT Description of amendment request: temperature conditions and validation of the components is to provide positive missile Waterford 3 Technical Specification required number of fans based on the barriers. The basis for the proposed change (TS) currently requires all the Dry temperature will continue to be required recognizes that there is a low probability, Cooling Tower (DCT) fans with cooling when an UHS fan is inoperable and the below an established acceptance limit, that a tornado missile will strike DCT components. associated train of UHS is operable. The UHS coils under the missile grating to be The change from essentially relying on DCT fans will not dissipate the required heat load operable during a tornado watch. If one fans with cooling coils under the missile when the associated train of UHS is (or more) of these DCT fans is grating to relying on all operable DCT fans inoperable, assuming the coincident ambient inoperable during a tornado watch, it is during a tornado watch is acceptable and wet bulb temperature (78 °F) at the required to be restored to operable represents an acceptably low probability of historically highest ambient dry bulb status within one hour or place the ° occurrence of tornado generated missile temperature (102 F). This change represents strikes on the DCTs. Therefore, this change plant in Hot Standby within 6 hours. a burden reduction and has no impact on The purpose of this TS change is to is not considered to constitute a significant plant safety. This change also does not decrease in the margin of safety. allow the plant to take credit for the impact the initiators or mitigation of any The proposed change to TS Action 3.7.4.d DCT fans that are not under the missile design basis event. eliminates an unnecessary requirement, to grating to meet the fan requirements The proposed revision to TS Table 3.7–3 determine ambient conditions and verify specified in TS Table 3.7–3. In addition, ensures consistency with the revisions to the compliance with TS Table 3.7–3, when an the proposed change will delete the TS Actions. This change is administrative Ultimate Heat Sink (UHS) fan is inoperable requirement to monitor ambient and has no impact on the initiators or the due to its associated train of UHS being mitigation of accidents previously evaluated. inoperable. The determination of ambient temperature conditions when the DCT Therefore, the proposed change does not fan is inoperable on an inoperable train temperature conditions will continue to be involve a significant increase in the required when an UHS fan is inoperable with of the Ultimate Heat Sink (UHS). probability or consequences of an accident the associated train of UHS operable. When Basis for proposed no significant previously evaluated. the UHS is not available, the fans cannot hazards consideration determination: 2. Does the proposed change create the dissipate the required heat load, assuming As required by 10 CFR 50.91(a), the possibility of a new or different kind of the coincident ambient wet bulb temperature licensee has provided its analysis of the accident from any accident previously (78 °F) at the historically highest ambient dry issue of no significant hazards evaluated? bulb temperature (102 °F). Therefore, it is not consideration, which is presented Response: No. necessary to monitor ambient temperature The proposed change will delete the below: and ensure the fan requirements of TS Table requirement to have all the DCT fans with 3.7–3 are met when the UHS train is 1. Does the proposed change involve a cooling coils under the missile grating inoperable. This change represents an significant increase in the probability or operable during a tornado watch. It has been operational burden reduction and has no consequences of an accident previously determined that the probability of damage to impact on plant safety. evaluated? the DCT components not under the missile The proposed revision to TS Table 3.7–3 Response: No. grating is acceptably low. A tornado at ensures consistency with the revisions to the The proposed change will delete the Waterford 3 is a design basis event TS Actions. These changes are administrative requirement to have all the DCT fans with considered in the FSAR. Therefore, the and have no impact on the operation of the cooling coils under the missile grating change will not contribute to the possibility plant, mitigation of analyzed events, or plant operable during a tornado watch. It has been of or be the initiator for any new or different safety, determined (using tornado missile strike kind of accident, or occur coincident with Therefore, the proposed change does not probability methodology—TORMIS) that the any of the design basis accidents in the involve a significant reduction in a margin of probability of damage to the DCT FSAR. The low probability threshold safety. components not under the missile grating established for tornado missile damage to Based on the above, Entergy concludes that (fans, motors, associated conduits, electrical system components is consistent with these the proposed amendment presents no boxes, and cooling coils) is acceptably low. assumptions. significant hazards consideration under the With respect to the probability of occurrence The proposed change to TS Action 3.7.4.d standards set forth in 10 CFR 50.92(c), and, or the consequences of an accident eliminates an unnecessary requirement, to accordingly, a finding of ‘‘no significant previously analyzed in the FSAR [Final determine ambient conditions and verify hazards consideration’’ is justified.

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The NRC staff has reviewed the potential instability event are reduced NRC Section Chief: Gene Y. Suh. licensee’s analysis and, based on this because of the more reliable automatic FirstEnergy Nuclear Operating review, it appears that the three detection and suppression of an instability Company, et al., Docket Nos. 50–334 standards of 10 CFR 50.92(c) are event, and the elimination of dependence on the manual operator actions. Operators will and 50–412, Beaver Valley Power satisfied. Therefore, the NRC staff continue to monitor for indications of Station, Unit Nos. 1 and 2 (BVPS–1 and proposes to determine that the thermal hydraulic instability when the 2), Beaver County, Pennsylvania amendment request involves no reactor is operating in regions of potential significant hazards consideration. instability as a backup to the OPRM Date of amendment request: October Attorney for licensee: N.S. Reynolds, instrumentation. 4, 2004. Esquire, Winston & Strawn 1400 L The potential for spurious reactor scrams Description of amendment request: Street NW., Washington, DC 20005– has been evaluated. Operating experience The proposed change requests approval with the OPRM has not resulted in the 3502. to apply the Westinghouse best-estimate generation of any spurious reactor scram loss-of-coolant accident (BELOCA) NRC Section Chief: Michael K. Webb, signals. Acting. Therefore, the proposed changes do not analysis methodology to Beaver Valley Power Station, Unit Nos. 1 and 2, and Exelon Generation Company, LLC, involve a significant increase in the probability of consequences of an accident requests an amendment of the related Docket Nos. 50–237 and 50–249, previously evaluated. Technical Specifications. The BELOCA Dresden Nuclear Power Station, Units 2 2. Does the proposed change create the methodology has previously been and 3, Grundy County, Illinois; Docket possibility of a new or different kind of approved on a generic basis by the NRC Nos. 50–254 and 50–265, Quad Cities accident from any accident previously as presented in Topical Report WCAP– Nuclear Power Station, Units 1 and 2, evaluated? 12945-P-A, Volume 1 (Revision 2) and Rock Island County, Illinois The proposed changes replace procedural actions that were established to avoid Volumes 2 through 5 (Revision 1), Date of application for amendment operating conditions where reactor ‘‘Code Qualification Document for Best- request: February 27, 2004, as instabilities might occur with an NRC Estimate LOCA Analysis,’’ March 1998. supplemented by letter dated October approved automatic detect and suppress Basis for proposed no significant 11, 2004. function (i.e., OPRM). hazards consideration determination: Description of amendment request: Potential failures in the OPRM trip As required by 10 CFR 50.91(a), the The proposed amendments would function could result in either failure to take licensee has provided its analysis of the revise the Dresden Nuclear Power the required mitigating action or an issue of no significant hazards unintended reactor scram. These are the consideration, which is presented Station and Quad Cities Nuclear Power same potential effects of failure of the Station technical specifications (TS) to operator to take the appropriate action under below: add the Oscillation Power Range the current procedural actions. The effects of 1. Does the proposed change involve a Monitor (OPRM) instrumentation to the failure of the OPRM equipment are limited to significant increase in the probability or TS. reduced or failed mitigation, but such failure consequences of an accident previously Basis for proposed no significant cannot cause an instability event or other evaluated? hazards consideration determination: type of accident. No. No physical changes are required as a result of implementing best-estimate large As required by 10 CFR 50.91(a), the Therefore, the proposed changes do not create the possibility of a new or different break loss of coolant accident (LOCA) licensee has provided its analysis of the kind of accident from any accident methodology and associated Technical issue of no significant hazards previously evaluated. Specification changes. The plant conditions consideration, which is presented 3. Does the proposed change involve a used in the analysis are bounded by the below: significant reduction in a margin of safety? design conditions for all equipment in the The OPRM trip function is being plant. Therefore, there will be no increase in 1. Does the proposed change involve a the probability of a LOCA. The consequences significant increase in the probability or implemented to automate the detection and subsequent suppression of an instability of a LOCA are not being increased, since it consequences of an accident previously event prior to exceeding the MCPR Safety is shown that the emergency core cooling evaluated? Limit. The OPRM trip provides a trip output system is designed so that its calculated This proposed change has no impact on of the same type as currently used for the cooling performance conforms to the criteria any of the existing neutron monitoring APRM [Average Power Range Monitor]. Its contained in 10 CFR 50.46, Paragraph b. No functions. It activates the OPRM scram failure modes and types are identical to those other accident is potentially affected by this function and updates the TS to add the for the present APRM output. Since the change. OPRM-related functions. MCPR Safety Limit will not be exceeded as Therefore, the proposed change does not Activation of the OPRM scram function a result of an instability event following involve a significant increase in the will replace the current methods that require implementation of the OPRM trip function, it probability or consequences of an accident operators to insert an immediate manual is concluded that the proposed change does previously evaluated. reactor scram in the reactor operating region not reduce the margin of safety. 2. Does the proposed change create the where thermal hydraulic instabilities could Therefore, the proposed changes do not possibility of a new or different kind of potentially occur. While this region will involve a significant reduction in a margin of accident from any previously analyzed? continue to be avoided during normal safety. No. There are no physical changes being operation, certain transients, such as a made to the Beaver Valley Power Station reduction in reactor recirculation flow, could The NRC staff has reviewed the units. No new modes of plant operation are place the reactor in this region. Operation in licensee’s analysis and, based on this being introduced. The parameters used in the this region, with the OPRM instrumentation review, it appears that the three analysis are within the design limits of the scram function activated would no longer standards of 10 CFR 50.92(c) are existing plant equipment. All plant systems require an immediate manual scram and thus satisfied. Therefore, the NRC staff will perform as designed during the response may potentially cause a marginal increase in proposes to determine that the to a potential accident. the probability of occurrence of an instability amendment request involves no Therefore, the proposed change does not event. This potential increase in probability create the possibility of a new or different is acceptable because the OPRM function significant hazards consideration. kind of accident from any previously will automatically detect the instability Attorney for licensee: Mr. Thomas S. analyzed. condition and initiate a reactor scram before O’Neill, Associate General Counsel, 3. Does the proposed amendment involve the Minimum Critical Power Ratio (MCPR) Exelon Generation Company, LLC, 4300 a significant reduction in the margin of Safety Limit is reached. Consequences of the Winfield Road, Warrenville, IL 60555. safety?

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No. It has been shown that the RTD and thermocouple sensors to be Nine Mile Point Nuclear Station, LLC, methodology used in the analysis would qualitatively assessed with the remainder of Docket No. 50–220, Nine Mile Point more realistically describe the expected the channel being calibrated normally. Nuclear Station Unit No. 1, Oswego behavior of plant systems during a postulated Instrument channel calibration is not an County, New York LOCA. Uncertainties have been accounted for initiator of any accident previously Date of amendment request: October as required by 10 CFR 50.46. A sufficient evaluated. Furthermore, the proposed change number of LOCAs with different break sizes, will not affect the ability of the channel being 22, 2004. different locations and other variations in Description of amendment request: calibrated to respond as assumed in any properties are analyzed to provide assurance accident previously evaluated. The The licensee proposed to revise the that the most severe postulated LOCAs are Technical Specifications (TSs), Section addressed. It has been shown by analysis that qualitative evaluation of sensor behavior for non-adjustable sensors will provide an 5.0, ‘‘Design Features,’’ by relocating the there is a high probability that all criteria information to the Updated Final Safety contained in 10 CFR 50.46, Paragraph b are accurate indication of sensor operation and met. will assure that portion of the channel is Analysis Report (UFSAR). Specifically, Therefore the proposed change does not operating properly, ensuring that the the amendment would relocate these involve a significant reduction in a margin of consequences of an accident will remain as Sections: 5.3, ‘‘Reactor Vessel,’’ 5.4, safety. previously evaluated. Therefore, the ‘‘Containment,’’ and 5.6, ‘‘Seismic The NRC staff has reviewed the proposed Technical Specification changes do Design.’’ The licensee stated that such licensee’s analysis and, based on this not involve a significant increase in the information does not meet the criteria of review, it appears that the three probability or consequences of an accident 10 CFR 50.36(c)(4) for inclusion in the standards of 10 CFR 50.92(c) are previously evaluated. TSs. The information to be relocated to satisfied. Therefore, the NRC staff 2. Does the proposed change create the the UFSAR already exists in the UFSAR, possibility of a new or different kind of proposes to determine that the and will continue to be controlled by 10 accident from any accident previously amendment request involves no CFR 50.59 and 10 CFR 50.71(e). evaluated? Basis for proposed no significant significant hazards consideration. Response: No. hazards consideration determination: Attorney for licensee: Mary O’Reilly, The proposed change revises the definition As required by 10 CFR 50.91(a), the FirstEnergy Nuclear Operating of Instrument Channel Calibration to allow licensee has provided its analysis of the Company, FirstEnergy Corporation, 76 RTD and thermocouple sensors to be issue of no significant hazards South Main Street, Akron, OH 44308. qualitatively assessed with the remainder of consideration, which is presented NRC Section Chief: Richard J. Laufer. the channel being calibrated as at present. below: Nine Mile Point Nuclear Station, LLC, The proposed change does not involve a physical alteration of the plant (no new or 1. Does the proposed change involve a Docket No. 50–220, Nine Mile Point significant increase in the probability or different type of equipment will be installed) Nuclear Station Unit No. 1, Oswego consequences of an accident previously County, New York or a change in the methods governing normal evaluated? plant operation. The proposed change also Response: No. Date of amendment request: October does not adversely affect the operation or The proposed change relocates certain 15, 2004. operability of existing plant equipment. design details from the TS to the UFSAR, Description of amendment request: Therefore, operation of the facility in where the information already exists. The The licensee proposed to revise Section accordance with the proposed amendment UFSAR is maintained in accordance with 10 1.7, regarding the definition of would not create the possibility of a new or CFR 50.71(e). Any future change to these ‘‘Instrument Channel Calibration,’’ of different kind of accident from any accident design details as described in the UFSAR the Technical Specifications by previously evaluated. will be evaluated per the requirements of 10 incorporating the additional guidance 3. Does the proposed change involve a CFR 50.59 to assure that the change does not for instrument channels containing significant reduction in a margin of safety? result in more than a minimal increase in the probability or consequences of an accident resistance temperature detector (RTD) Response: No. The proposed change involves the previously evaluated. and thermocouple sensors provided by Therefore, the proposed change does not definition of Instrument Channel Calibration the ‘‘Standard Technical Specifications, involve a significant increase in the to allow RTD and thermocouple sensors to be General Electric Plants, BWR [Boiling- probability or consequences of an accident Water Reactor]/4 Specifications,’’ qualitatively assessed with the remainder of previously evaluated. NUREG–1433, Revision 3. The revised the channel being calibrated normally. The 2. Does the proposed change create the definition would permit in place proposed change to the Instrument Channel possibility of a new or different kind of Calibration definition does not alter the qualitative assessment of the RTDs and accident from any accident previously ability of a channel to respond as designed thermocouples, and to allow a signal to evaluated? or as assumed in the safety analyses. Response: No. be injected downstream of the sensor for Therefore, this change does not involve a The proposed change does not involve a the purpose of calibrating the remainder significant reduction in a margin of safety. physical alteration of the plant (no new or of the channel. different type of equipment will be installed) Basis for proposed no significant The NRC staff has reviewed the or a change in the methods governing normal hazards consideration determination: licensee’s analysis and, based on this plant operation. The proposed change will As required by 10 CFR 50.91(a), the review, it appears that the three not impose or eliminate any requirements, licensee has provided its analysis of the standards of 10 CFR 50.92(c) are and adequate control of the information will issue of no significant hazards satisfied. Therefore, the NRC staff be maintained in accordance with applicable consideration, which is presented proposes to determine that the regulatory requirements. Therefore, the proposed change does not below: amendment request involves no create the possibility of a new or different 1. Does the proposed change involve a significant hazards consideration. kind of accident from any accident significant increase in the probability or Attorney for licensee: Mark J. previously evaluated. consequences of an accident previously Wetterhahn, Esquire, Winston & Strawn, 3. Does the proposed change involve a evaluated? 1400 L Street, NW., Washington, DC significant reduction in a margin of safety? Response: No. Response: No. The proposed change revises the definition 20005–3502. The proposed change has no impact on any of Instrument Channel Calibration to allow NRC Section Chief: Richard J. Laufer. analysis assumptions. The design details that

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are being removed from the TS already exist alter plant configuration, operating setpoints, NUREG–0612, ‘‘Control of Heavy Loads in the UFSAR. Any future change to these or overall plant performance. Therefore, the at Nuclear Power Plants,’’ and NUREG– design details described in the UFSAR will proposed change would not create the 0554. ‘‘Single-Failure Proof Cranes for be evaluated per the requirements of 10 CFR possibility of a new or different kind of Nuclear Power Plants,’’ in performing 50.59 to assure that the change does not accident from any accident previously result in a design basis limit [or] a fission evaluated. the necessary movement of the HBPP product barrier being exceeded or altered. NMC Response for Proposed Change to TS spent fuel to dry cask storage. The Therefore, the proposed change does not 6.9.a.4.A: No. The proposed change does not licensee has requested a license involve a significant reduction in [a] margin alter plant configuration, operating setpoints, amendment that approves the use of the of safety. or overall plant performance. Therefore, the crane and associated changes to the The NRC staff has reviewed the proposed change would not create the HBPP Defueled Safety Analysis Report licensee’s analysis and, based on this possibility of a new or different kind of (DSAR) along with analyses, design, and review, it appears that the three accident from any accident previously procedural changes required to evaluated. implement transfer of the spent fuel standards of 10 CFR 50.92(c) are 3. Does the proposed amendment involve satisfied. Therefore, the NRC staff a significant reduction in a margin of safety? from the spent fuel pool to the ISFSI. proposes to determine that the NMC Response for Proposed Change to TS Basis for proposed no significant amendment request involves no 3.10.i: No. The proposed change does not hazards consideration determination: significant hazards consideration. involve a significant reduction in a margin of As required by 10 CFR 50.91(a), the Attorney for licensee: Mark J. safety. Inclusion of the omitted word ‘‘and’’ licensee has provided its analysis of the Wetterhahn, Esquire, Winston & Strawn, in TS 3.10.i will enhance the margin of issue of no significant hazards 1400 L Street, NW., Washington, DC safety. consideration, which is presented 20005–3502. NMC Response for Proposed Change to below: NRC Section Chief: Richard J. Laufer. 6.9.a.4.A: No. The proposed change does not involve a significant reduction in a margin of 1. Does the proposed amendment involve Nuclear Management Company, LLC, safety. Correction of the references in TS a significant increase in the probability or Docket No. 50–305, Kewaunee Nuclear Section 6.9.a.4.A will enhance the margin of consequences of an accident previously Power Plant, Kewaunee County, safety. evaluated? No. With the HI–STAR HB System and the Wisconsin The NRC staff has reviewed the associated design and handling procedures, Date of amendment request: October licensee’s analysis and, based on this all cask drops and other events, which could 14, 2004. review, it appears that the three damage other spent fuel, have been Description of amendment request: standards of 10 CFR 50.92(c) are precluded through the robust handling The proposed changes correct satisfied. Therefore, the NRC staff systems, and mechanical arrangement that administrative errors in Technical proposes to determine that the preclude crane movement over spent fuel, meeting the guidelines of NUREG–0612. Specifications 3.10.i and 6.9.a.4.A. amendment request involves no significant hazards consideration. Revisions of the HBPP procedures Basis for proposed no significant implementing the control of heavy loads hazards consideration determination: Attorney for licensee: Bradley D. ensures that PG&E will meet the NUREG– As required by 10 CFR 50.91(a), the Jackson, Esq., Foley and Lardner, P.O. 0612 guidelines and will protect the fuel licensee has provided its analysis of the Box 1497, Madison, WI 53701–1497. storage locations and the new HI–STAR HB issue of no significant hazards NRC Section Chief: L. Raghavan. System loading/unloading activities. As a consideration, which is presented Pacific Gas and Electric Company, result of this design approach, a cask- below: handling accident that results in a significant Docket No. 50–133, Humboldt Bay offsite radiological release is not considered 1. Does the proposed amendment involve Power Plant, Unit 3, Humboldt County, credible as demonstrated by the probabilistic a significant increase in the probability or California evaluation that was performed using the consequences of an accident previously guidelines of NUREG–0612 Appendix B and evaluated? Date of amendment request: July 9, 2004. updated information from NUREG–1774 [‘‘A NMC [Nuclear Management Company, the Survey of Crane Operating Experience at U.S. licensee] Response for Proposed Change to Description of amendment request: Nuclear Power Plants from 1968 through TS 3.10.i: No. The NMC has reviewed the The Humboldt Bay Power Plant (HBPP), 2002.’’] proposed change in accordance with the Unit 3, is a decommissioning nuclear Other HBPP licensing-basis events, such as provisions of 10 CFR 50.92 to show no power plant that was permanently the drop of a spent fuel assembly, have not significant hazards exist. This change is shutdown in July 1976. In December of being proposed to correct an administrative been affected by these changes and remain error that currently exists within the KNPP 2003, Pacific Gas and Electric (PG&E or bounding events for potential radiological [Kewaunee Nuclear Power Plant] Technical the licensee) applied for a license to consequences. Specifications; therefore it would not have an store its spent fuel in an onsite dry cask The proposed design of the dry cask affect on the probability of an accident independent spent fuel storage system, the handling system, and associated previously evaluated. installation (ISFSI). Moving the spent procedural controls provide assurance that: NMC Response for Proposed Change to TS (1) Operational errors and mishandling fuel to an ISFSI would permit the events, and (2) support system malfunctions 6.9.a.4.A: No. The NMC has reviewed the licensee to begin significant proposed change in accordance with the will not result in an increase in the provisions of 10 CFR 50.92 to show no decommissioning activities. The probability or consequence of an accident significant hazards exist. This change is licensee has chosen to use a Holtec HI– previously analyzed. being proposed to correct an administrative STAR HB spent fuel cask handling The proposed changes to use the Holtec error that currently exists within the KNPP system involving a spent fuel HI–STAR HB system have been evaluated for Technical Specifications; therefore it would multipurpose canister and overpack. To seismic events and tornado missile impacts not have an affect on the probability of an facilitate spent fuel transfer from the and it has been determined that these accident previously evaluated. HBPP spent fuel pool to the ISFSI, the changes will not result in an increase in the probability or consequences of an accident 2. Does the proposed amendment create licensee will also need to install a new the possibility of a new or different kind of previously evaluated. The Fire Protection accident from any accident previously crane that can be used to lift the cask Program will ensure that the combustible evaluated? handling system loaded with spent fuel materials are properly controlled such that NMC Response for Proposed Change to TS assemblies. The licensee states it will be the total combustibles meet the current 3.10.i: No. The proposed change does not able to satisfy the applicable guidance of program commitments. Therefore, the

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proposed changes do not involve a Other design considerations, such as SFP Criterion 1—The Proposed Change Does Not significant increase in the probability or thermal, water chemistry, criticality, and Involve a Significant Increase in the consequences of an accident. structural, were evaluated and determined to Probability or Consequences of an Accident 2. Does the proposed amendment create not involve a reduction in a margin of safety. Previously Evaluated the possibility of a new or different type of A change is proposed to allow the affected accident from any accident previously Based on the above evaluations, the SDV vent and drain line to be isolated when evaluated? licensee concludes that the activities there are one or more SDV vent or drain lines No. The engineering design measures and associated with the above changes with one valve inoperable instead of the handling procedures preclude the present no significant hazards requiring the valve to be restored to operable possibility of new or different kinds of consideration under the standards set status within 7 days. With one SDV vent or accidents. Damage to 10 CFR 50 structures, drain valve inoperable in one or more lines, systems, and components from the cask forth in 10 CFR 50.92 and accordingly, a finding by the NRC of no significant the isolation function would be maintained handling and associated activities, and since the redundant valve in the affected line events resulting from possible damage to hazards consideration is justified. would perform its safety function of isolating contained fuel have been considered. Both The NRC staff has reviewed the the SDV. Following the completion of the the types of accidents and the results remain required action, the isolation function is within the envelope of existing HBPP DSAR licensee’s analysis and, based on this review, it appears that the three fulfilled since the associated line is isolated. licensing basis analyses, as demonstrated by The ability to vent and drain the SDV is the PG&E and Holtec analyses. standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff maintained and controlled through The rupture of multipurpose canister administrative controls. This requirement (MPC) dewatering, forced helium proposes to determine that the assures the reactor protection system is not dehydration or related closure system lines amendment request involves no adversely affected by the inoperable valves. or the malfunction of equipment during cask significant hazards consideration. With the safety functions of the valves being handling operations resulting in radiological maintained, the probability or consequences consequences are bounded by the HBPP Attorney for licensee: Richard F. of an accident previously evaluated are not DSAR fuel-handling accident analysis. Locke, Esquire, Pacific Gas and Electric significantly increased. Other design considerations, such as spent Company, P.O. Box 7442, San fuel pool (SFP) thermal, water chemistry and Francisco, California 94120. Criterion 2—The Proposed Change Does Not clarity, criticality, and structural, were Create the Possibility of a New or Different evaluated and determined not to introduce NRC Section Chief: Claudia Craig. Kind of Accident From Any Accident the possibility of a new or different kind of PPL Susquehanna, LLC, Docket Nos. Previously Evaluated accident from any previously evaluated. 50–387 and 50–388, Susquehanna The proposed change does not involve a Therefore, the proposed changes do not physical alteration of the plant (no new or create the possibility of a new or different Steam Electric Station, Units 1 and 2, Luzerne County, Pennsylvania different type of equipment will be installed) kind of accident from any previously or a change in the methods governing normal evaluated. plant operation. Thus, this change does not 3. Does the proposed amendment involve Date of amendment request: September 8, 2004. create the possibility of a new or different a significant reduction in a margin of safety? kind of accident from any previously No. With the Holtec HI–STAR HB System, Description of amendment request: evaluated. and the associated design and handling The proposed amendment would revise procedures, cask drops and other events have Criterion 3—The Proposed Change Does Not been precluded through robust load handling Technical Specification 3.1.8, ‘‘Scram Involve a Significant Reduction in [a] Margin systems, providing defense-in-depth as Discharge Volume (SDV) Vent and Drain of Safety described in NUREG–0612. Cask tipovers, Valves,’’ to allow a vent or drain line The proposed change ensures that the while not considered credible, are shown to with one inoperable valve to be isolated safety functions of the SDV vent and drain be below the 60g limit, preventing damage to instead of requiring the valve to be valves are fulfilled. The isolation function is the contained fuel assemblies (and associated restored to Operable status within 7 maintained by redundant valves and by the structures), and meeting the analysis days. required action to isolate the affected line. guidelines of NUREG–0612. As the existing The ability to vent and drain the SDV is licensing basis assumes a nonmechanistic The NRC staff issued a notice of maintained through administrative controls. drop damaging the SFP and all fuel, the opportunity for comment in the Federal In addition, the reactor protection system result of this design approach with the Register on February 24, 2003 (68 FR will prevent filling of the SDV to the point minimization of drops and the associated 8637), on possible amendments to revise that it has insufficient volume to accept a full structural challenges assure the margin of the action for one or more SDV vent or scram. Maintaining the safety functions safety has been maintained. drain lines with an inoperable valve, related to isolation of the SDV and insertion Other HBPP licensing-basis events, such as including a model safety evaluation and of control rods ensures that the proposed the drop of a spent fuel assembly, have not change does not involve a significant been affected by these changes and remain model no significant hazards reduction in the margin of safety. consideration (NSHC) determination, bounding events. Revision of HBPP The NRC staff proposes to determine procedures implementing the control of using the consolidated line-item heavy loads to incorporate the additional improvement process. The NRC staff that the amendment request involves no restrictions on heavy loads movement will subsequently issued a notice of significant hazards consideration. not affect the procedures or methodology availability of the models for referencing Attorney for licensee: Bryan A. Snapp, used and will, therefore, not affect margins. in license amendment applications in Esquire, Assoc. General Counsel, PPL Adverse effects from seismic events and/or the Federal Register on April 15, 2003 Services Corporation, 2 North Ninth St., cask drops or tipovers have been evaluated, (68 FR 18294). The licensee affirmed the GENTW3, Allentown, PA 18101–1179. assuring that the fuel, MPC, and overpack NRC Section Chief: Richard J. Laufer. remain within their design bases. Since applicability of the model NSHC design basis criteria are fully satisfied, there determination in its application dated PPL Susquehanna, LLC, Docket No. 50– is no impact on the margin of safety. September 8, 2004. 388, Susquehanna Steam Electric The Fire Protection Program will continue Basis for proposed no significant Station, Unit 2, Luzerne County, to ensure that the combustible materials are hazards consideration determination: Pennsylvania properly controlled such that the total combustibles meet the current program As required by 10 CFR 50.91(a), an Date of amendment request: commitments. Thus, there are no significant analysis of the issue of no significant September 22, 2004. reductions in margin of safety associated hazards consideration is presented Description of amendment request: with these changes. below: The proposed amendment would extend

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the validity of the reactor pressure reduce the margin of safety to RPV brittle probability or consequences of an accident vessel (RPV) pressure-temperature (P–T) fracture. previously evaluated. limit curves from May 1, 2005, to May Since the Unit 2 P–T curves have a 2. Does the proposed change create the 1, 2006. maximum lifetime exposure of 32 EFPYs and possibility of a new or different kind of the anticipated exposure by May 1, 2006 will accident from any accident previously Basis for proposed no significant be well below the maximum value, the evaluated? hazards consideration determination: margin of safety is not reduced as the result No. This TS change involves the automatic As required by 10 CFR 50.91(a), the of this change in expiration date. Resolution start of the AFW pumps when the TDMFW licensee has provided its analysis of the of the current industry issues related to Pumps trip. This change involves a function issue of no significant hazards fluence calculation methodology requires that is not a safety related feature and, consideration, which is presented PPL to limit applicability of the Unit 2 P–T therefore, is not credited in either transient curves to May 1, 2006. or accident analyses. Since this change only below: affects the point at which this trip function 1. Does the proposed change involve a The NRC staff has reviewed the needs to be operable and does not affect the significant increase in the probability or licensee’s analysis and, based on this function that actuates AFW due to low-low consequences of an accident previously review, it appears that the three steam generator level or a safety injection evaluated? standards of 10 CFR 50.92(c) are signal, it will not be an initiator to a new or Response: No. satisfied. Therefore, the NRC staff different kind of accident from any accident The evaluation for the Unit 2 P–T limit proposes to determine that the previously evaluated. 3. Does the proposed change involve a curves for 32 EFPYs [effective full-power amendment request involves no years] was performed using the approved significant reduction in margin of safety? methodologies of 10 CFR [Part] 50 Appendix significant hazards consideration. No. This TS change involves the automatic G and Code Case–640. The curves generated Attorney for licensee: Bryan A. Snapp, start of the AFW pumps when the TDMFW from these methods were approved as Esquire, Assoc. General Counsel, PPL pumps trip which is not a safety related plant Amendment 174 (Ref. 1) and are currently in Services Corporation, 2 North Ninth St., function. This change does not change any the Unit 2 TS. These curves ensure the P–T GENTW3, Allentown, PA 18101–1179 values or limits involved in a safety related limits will not be exceeded during any phase NRC Section Chief: Richard J. Laufer. function. Therefore, the proposed change of reactor operation. Resolution of the current does not involve a significant reduction in a industry issues related to fluence calculation Tennessee Valley Authority (TVA), margin of safety. methodology required PPL to limit Docket No. 50–390, Watts Bar Nuclear The NRC staff has reviewed the applicability of the curves to May 1, 2005 for Plant, Unit 1, Rhea County, Tennessee licensee’s analysis and, based on this Unit 2. The proposed change does not alter Date of amendment request: review, it appears that the three any of the technical information shown on standards of 10 CFR 50.92(c) are the present P–T curves. The change extends September 23, 2004. the expiration date for one year while Description of amendment request: satisfied. Therefore, the NRC staff maintaining the total accumulated exposure The proposed amendment would revise proposes to determine that the well below the 32 EFPY maximum exposure the Technical Specifications (TSs) to amendment request involves no lifetime limit. Therefore, there is no increase require automatic starting of the significant hazards consideration. in the probability or consequences of any auxiliary feedwater (AFW) pumps upon Attorney for licensee: General previously evaluated accident as a result of trip of the Turbine Driven Main Counsel, Tennessee Valley Authority, this change. Feedwater (TDMFW) pumps only when 400 West Summit Hill Drive, ET 11A, 2. Does the proposed change create the Knoxville, Tennessee 37902. possibility of a new or different kind of one or more of TDMFW pumps are operating. NRC Section Chief: Michael L. accident from any accident previously Marshall, Jr. evaluated? Basis for proposed no significant Response: No. hazards consideration determination: Union Electric Company, Docket No. The proposed change involves changing As required by Title 10 of the Code of 50–483, Callaway Plant, Unit 1, the expiration date on the Unit 2 P–T limit Federal Regulations (10 CFR), Section Callaway County, Missouri curves. The change does not affect the 50.91(a), the licensee has provided its Date of application request: October present operating margin in the P–T limit analysis of the issue of no significant 27, 2004. curves for inservice leakage and hydrostatic hazards consideration, which is pressure testing, non-nuclear heatup and Description of amendment request: presented below: cooldown, and criticality. Operation in The amendment would revise Technical accordance with the present P–T curves, 1. Does the proposed change involve a Specification (TS) 3.7.3, ‘‘Main developed in accordance with the provisions significant increase in the probability or Feedwater Isolation Valves (MFIVs),’’ to of ASME Code [American Society of consequences of an accident previously add the main feedwater regulating Mechanical Engineers Boiler and Pressure evaluated? valves (MFRVs) and the associated Vessel Code], Section XI, Appendix G; 10 No. The design basis events which impose CFR [Part] 50 Appendix G, and ASME Code AFW safety function requirements are loss of MFRV bypass valves (MFRVBVs). In Case–640 provides adequate protection normal main feedwater, main feedline or addition, the allowed outage time, or against a non-ductile-type fracture of the main steamline break, loss of offsite power, completion time, for inoperable MFIVs RPV. This proposed change does not create loss of coolant accident, and small break loss would be extended. the possibility of any new or different [kind] of coolant accident. These accident Basis for proposed no significant of accident. The change extends the evaluations assume actuation of AFW hazards consideration determination: expiration date of the present P–T curves and occurring due to low-low steam generator As required by 10 CFR 50.91(a), the does not result in any new or unanalyzed level or a safety injection signal. These licensee has provided its analysis of the operation of any system or piece of signals are required safety related features issue of no significant hazards equipment important to safety. unlike start-up of the AFW pumps due to the consideration, which is presented 3. Does the proposed change involve a trip of both TDMFW pumps which is an significant reduction in a margin of safety? anticipatory function and not required for below: Response: No. either transient or accident analyses. 1. The proposed change does not involve The technical information contained in the Requiring this function only when the a significant increase in the probability or present P–T curves approved by Amendment TDMFW pumps are running will not impact consequences of an accident previously 174 (Ref. 1) is not affected by this change. any previously evaluated design basis events. evaluated. Extending the expiration date of the curves Therefore, the proposed change does not The proposed changes add the MFRVs and from May 1, 2005 to May 1, 2006 will not involve a significant increase in the MFRVBVs to TS 3.7.3 and extend the

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Completion Time for one or more MFIVs 3, ‘‘Steam Generator Repaired Tube The NRC staff has reviewed the inoperable from 4 hours to 72 hours. Inspection,’’ to delete the requirement to licensee’s analysis and, based on this Extending the Completion Time is not an notify the NRC pursuant to 10 CFR review, it appears that the three accident initiator and thus does not change 50.72(b)(2) if the steam generator tube standards of 10 CFR 50.92(c) are the probability that an accident will occur. However, it could potentially affect the inspection results in a C–3 classification satisfied. Therefore, the NRC staff consequences of an accident if an accident because reporting requirements are proposes to determine that the occurred during the extended unavailability given in the regulations. amendment request involves no of the inoperable MFIV. The increase in time Basis for proposed no significant significant hazards consideration. that the MFIV is unavailable is small and the hazards consideration determination: Attorney for licensee: John O’Neill, probability of an event occurring during this As required by 10 CFR 50.91(a), the Esq., Shaw, Pittman, Potts & time period which would require isolation of Trowbridge, 2300 N Street, NW., the MFW [main feedwater] flow paths is low. licensee has provided its analysis of the issue of no significant hazards Washington, DC 20037. Moreover, the redundancy provided by the NRC Section Chief: Robert A. Gramm. MFRVs and MFRVBVs, which have the same consideration, which is presented actuation signals and closure time below: Virginia Electric and Power Company, requirements as the MFIVs, provides 1. The proposed change does not involve Docket Nos. 50–280 and 50–281, Surry adequate assurance that automatic feedwater a significant increase in the probability or Power Station, Unit Nos. 1 and 2, Surry isolation will occur if called upon. County, Virginia Therefore, the proposed changes do not consequences of an accident previously involve a significant increase in the evaluated. Date of amendment request: probability or consequences of an accident This request involves administrative September 15, 2004. previously evaluated. changes only. The changes consist of Description of amendment request: duplicates or overly burdensome reporting 2. The proposed change does not create the The proposed changes will change the requirements or the deletion of completed possibility of a new or different kind of Administrative Controls Section of the accident from any accident previously items required by [the TSs or] conditions from the original issuance of Operating Technical Specifications (TS) in order to evaluated. incorporate title changes, change the Closure of the MFIVs is required to License NPF–30 [for the Callaway Plant]. No mitigate the consequences of the Main Steam actual plant equipment or accident analyses location where the plant-specific titles Line Break and Main Feedwater Line Break will be affected by the proposed changes. and TS titles are correlated, and relocate accidents. The MFRVs and MFRVBVs Therefore, the proposed changes do not the unit staff requirements to the provide a diverse backup to this function. involve a significant increase in the Quality Assurance Program. These [The extended Completion Time for probability or consequences of an accident proposed changes will support the inoperable MFIVs is not an accident previously evaluated. implementation of proposed Virginia initiator.] The proposed changes do not 2. The proposed change does not create the Electric and Power Company Topical create the possibility of a new or different possibility of a new or different kind of accident from any accident previously Report DOM–QA–1, ‘‘Nuclear Facility kind of accident from any previously Quality Assurance Program evaluated. evaluated. 3. The proposed change does not involve This request involves administrative Description,’’ currently under NRC staff a significant reduction in a margin of safety. changes only. The changes consist of review. In addition, these proposed TS The proposed changes do not revise any duplicates or overly burdensome reporting changes eliminate the descriptions of Technical Specification [Safety] Limit or requirements or the deletion of completed the onsite and offsite safety review accident analysis assumption. Therefore, items required by [the TSs or] conditions organizations. [they do] not involve a reduction in a margin from the original issuance of Operating Basis for proposed no significant of safety. License NPF–30. No actual plant equipment hazards consideration determination: or accident analyses will be affected by the The NRC staff has reviewed the As required by 10 CFR 50.91(a), the proposed change[s] and no failure modes not licensee has provided its analysis of the licensee’s analysis and, based on this bounded by previously evaluated accidents review, it appears that the three will be created. Therefore, the proposed issue of no significant hazards standards of 10 CFR 50.92(c) are changes do not create a new or different kind consideration, which is presented satisfied. Therefore, the NRC staff of accident from any accident previously below: proposes to determine that the evaluated. 1. Operation of Surry Units 1 and 2 in amendment request involves no 3. The proposed change does not involve accordance with the proposed license significant hazards consideration. a significant reduction in a margin of safety. amendments would not involve a significant Attorney for licensee: John O’Neill, Margin of safety is associated with increase in the probability or consequences Esq., Shaw, Pittman, Potts & confidence in the ability of the fission of an accident previously evaluated. Trowbridge, 2300 N Street, NW., product barriers (i.e., fuel and fuel cladding, The proposed change is administrative in Reactor Coolant System pressure boundary, nature and does not affect plant systems, Washington, DC 20037. and containment structure [pressure NRC Section Chief: Robert A. Gramm. structures or components (SSCs) or plant boundary]) to limit the level of radiation dose operation during normal or accident Union Electric Company, Docket No. to the public. This request involves conditions. The proposed change only affects 50–483, Callaway Plant, Unit 1, administrative changes only. the designated titles of personnel, rewords or Callaway County, Missouri No actual plant equipment or accident relocates requirements within TS or deletes analyses will be affected by the proposed requirements that are either not required to Date of application request: October change[s]. The changes consist of duplicates be part of TS or are already required by 27, 2004. or overly burdensome reporting requirements regulation. The change also relocates the Description of amendment request: or the deletion of completed items required detailed description of the onsite and offsite The amendment would delete or revise by [the TSs or] conditions from the original safety review organizations and non-licensed license conditions in the operating issuance of Operating License NPF–30. personnel qualification requirements to the license for the Callaway Plant because Additionally, the proposed changes will not Quality Assurance Program. Therefore, this relax any criteria used to establish safety change has no bearing on the probability of the requirements are either obsolete or limits, will not relax any safety system an accident. The management organizational adequately described elsewhere. The settings, or will not relax the bases for any structure and safety and operational reviews amendment would also revise Technical limiting conditions of operation. Therefore, have not changed and, therefore, do not Specification Tables 5.5.9–2, ‘‘Steam the proposed changes do not involve a impact the ability of operating procedures or Generator Tube Inspection,’’ and 5.5.9– significant reduction in the margin of safety. administrative controls to prevent or mitigate

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a previously evaluated accident. As such, Power Station, Building 475, 5th Floor, configuration of the facility or the manner in this change does not alter the conclusions of Rope Ferry Road, Rt. 156, Waterford, which the plant is operated and maintained. the existing safety analyses and therefore Connecticut 06385. The proposed changes do not alter or prevent does not alter the consequences of an NRC Section Chief: Mary Jane Ross- the ability of structures, systems, and accident previously evaluated. components (SSCs) from performing their 2. Operation in accordance with the Lee (Acting). intended [safety] function to mitigate the proposed license amendments would not Wolf Creek Nuclear Operating consequences of an initiating event within create the possibility of a new or different Corporation, Docket No. 50–482, Wolf the assumed acceptance limits. The proposed kind of accident from any accident Creek Generating Station, Coffey changes do not affect the source term, previously evaluated. containment isolation, or radiological release The proposed administrative change County, Kansas assumptions used in evaluating the continues to ensure that adequate Date of amendment request: July 23, radiological consequences of an accident management oversight exists at the plant in 2004. previously evaluated. Further, the proposed accordance with the existing Technical Description of amendment request: changes do not increase the types or amounts Specifications. The proposed change only of radioactive effluent that may be released affects the designated titles of personnel, The amendment would revise Technical Specification 3.6.3, ‘‘Containment offsite, nor significantly increase individual rewords or relocates requirements within TS or cumulative occupational/public radiation or deletes requirements that are either not Isolation Valves,’’ by (1) Adding the exposures. The proposed changes are required to be part of TS or are already abbreviation ‘‘(CIV)’’ for containment consistent with the safety analysis required per regulation. The change also isolation valve in Condition A of the assumptions and resultant consequences [in relocates the detailed description of the Actions for the Limiting Condition for Chapter 15, ‘‘Accident Analysis,’’ of the onsite and offsite safety review organizations Operation; (2) deleting the Note and Updated Final Safety Analysis Report and non-licensed personnel qualification revising Condition A to be for only one (USAR) for the plant]. requirements to the Quality Assurance penetration flow path with one CIV Therefore, it is concluded that this change Program. Therefore this change does not does not increase the probability of impact plant SSCs or plant operation and inoperable; (3) revising the completion time for Required Condition A.1 from 4 occurrence of a malfunction of equipment therefore does not create the possibility of an important to safety. accident of a different type than evaluated hours to as much as 7 days depending 2. The proposed change does not create the previously. The management organizational on the category of the inoperable CIV; possibility of a new or different kind of structure and safety and operational reviews and (4) revising Condition C to be for accident from any accident previously have not changed. Therefore, there is no two or more penetration flow paths with evaluated. change in the method of plant operation, one CIV inoperable. The proposed The proposed changes do not result in a operation review or system design review. amendment is based on Topical Report change in the manner in which the There are no new or different accident WCAP–15791–P, ‘‘Risk-Informed containment isolation valves provide plant scenarios, accident initiators, nor failure protection. There are no design changes mechanisms that will be introduced due to Evaluation of Extensions to Containment Isolation Valve associated with the proposed changes. The this change. changes to Completion Times do not change 3. Operation in accordance with the Completion Times.’’ any existing accident scenarios, nor create proposed license amendments would not Basis for proposed no significant any new or different accident scenarios. involve a significant reduction in a margin of hazards consideration determination: The changes do not involve a physical safety. As required by 10 CFR 50.91(a), the alteration of the plant (i.e., no new or The proposed change only affects the licensee has provided its analysis of the different type of equipment will be installed) designated titles of personnel, rewords or or a change in the methods governing normal relocates requirements within TS or deletes issue of no significant hazards plant operation. In addition, the changes do requirements that are either not required to consideration, which is presented not impose any new or different be part of TS or are already required per below: requirements or eliminate any existing regulation. The change also relocates the 1. The proposed change does not involve requirements. The changes do not alter detailed description of the onsite and offsite a significant increase in the probability or assumptions made in the safety analysis. The safety review organizations and non-licensed consequences of an accident previously proposed changes are consistent with the personnel qualification requirements to the evaluated. The proposed changes to the safety analysis assumptions and current plant Quality Assurance Program. Consequently, Completion Times do not change the operating practice. this change does not impact plant design, response of the plant to any accidents and plant operation or any safety margin and, Therefore, the possibility of a new or have an insignificant impact on the reliability different malfunction of safety related therefore, does not significantly reduce a of the containment isolation valves. The margin of safety. equipment is not created. containment isolation valves will remain 3. The proposed change does not involve This evaluation concludes that the highly reliable and the proposed changes will proposed amendments to the Surry Units 1 a significant reduction in a margin of safety. not result in a significant increase in the risk The proposed changes do not alter the and 2 Technical Specifications do not of plant operation. This is demonstrated by involve a significant increase in the manner in which safety limits, limiting safety showing that the impact on plant safety as system settings or limiting conditions for probability or consequences of a previously measured by the large early release frequency evaluated accident, do not create the operation are determined. The safety analysis (LERF) and incremental conditional large possibility of a new or different kind of acceptance criteria are not impacted by these early release probabilities (ICLERP) is accident and do not involve a significant changes. The proposed changes will not acceptable. These changes are consistent reduction in a margin of safety. result in plant operation in a configuration with the acceptance criteria in [the risk- outside the design basis. The calculated The NRC staff has reviewed the informed] Regulatory Guides 1.174 and impact on risk is insignificant and is licensee’s analysis and, based on this 1.177. Therefore, since the containment consistent with the acceptance criteria review, it appears that the three isolation valves will continue to perform contained in Regulatory Guides 1.174 and standards of 10 CFR 50.92(c) are their [safety] functions with high reliability 1.177. satisfied. Therefore, the NRC staff as originally assumed and the increase in risk Therefore, it is concluded that this change as measured by LERF and ICLERP is proposes to determine that the does not involve a significant reduction in acceptable, there will not be a significant the margin of safety. amendment request involves no increase in the consequences of any significant hazards consideration. accidents. The NRC staff has reviewed the Attorney for licensee: Ms. Lillian M. The proposed changes do not adversely licensee’s analysis and, based on this Cuoco, Esq., Senior Counsel, Dominion affect accident initiators or precursors nor review, it appears that the three Resources Services, Inc., Millstone alter the design assumptions, conditions, or standards of 10 CFR 50.92(c) are

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satisfied. Therefore, the NRC staff Commission’s rules and regulations in four-or five-recirculation-loop proposes to determine that the 10 CFR Chapter I, which are set forth in operation, and from 1.10 to 1.12 for amendment request involves no the license amendment. three-recirculation-loop operation. significant hazards consideration. Notice of Consideration of Issuance of Date of Issuance: November 16, 2004. Attorney for licensee: Jay Silberg, Esq., Amendment to Facility Operating Effective date: November 16, 2004, Shaw, Pittman, Potts and Trowbridge, License, Proposed No Significant and shall be implemented within 60 2300 N Street, NW., Washington, DC Hazards Consideration Determination, days of issuance. 20037. and Opportunity for A Hearing in Amendment No.: 252. NRC Section Chief: Robert Gramm. connection with these actions was Facility Operating License No. DPR– published in the Federal Register as 16: Amendment revised the Technical Previously Published Notices of indicated. Specifications. Consideration of Issuance of Unless otherwise indicated, the Date of initial notice in Federal Amendments to Facility Operating Commission has determined that these Register: September 14, 2004 (69 FR Licenses, Proposed No Significant amendments satisfy the criteria for 55467). The October 11 and 19, 2004, Hazards Consideration Determination, categorical exclusion in accordance letters provided clarifying information and Opportunity For a Hearing with 10 CFR 51.22. Therefore, pursuant within the scope of the original The following notices were previously to 10 CFR 51.22(b), no environmental application and did not change the published as separate individual impact statement or environmental staff’s initial proposed no significant notices. The notice content was the assessment need be prepared for these hazards consideration determination. same as above. They were published as amendments. If the Commission has The Commission’s related evaluation of individual notices either because time prepared an environmental assessment this amendment is contained in a Safety did not allow the Commission to wait under the special circumstances Evaluation dated November 16, 2004. for this biweekly notice or because the provision in 10 CFR 51.12(b) and has No significant hazards consideration action involved exigent circumstances. made a determination based on that comments received: No. They are repeated here because the assessment, it is so indicated. AmerGen Energy Company, LLC, et. al., biweekly notice lists all amendments For further details with respect to the Docket No. 50–219, Oyster Creek issued or proposed to be issued action see (1) the applications for Nuclear Generating Station (OCNGS), involving no significant hazards amendment, (2) the amendment, and (3) Ocean County, New Jersey, Docket No. consideration. the Commission’s related letter, Safety 50–289, Three Mile Island Nuclear For details, see the individual notice Evaluation and/or Environmental Station, Unit 1 (TMI–1), Dauphin in the Federal Register on the day and Assessment as indicated. All of these County, Pennsylvania page cited. This notice does not extend items are available for public inspection the notice period of the original notice. at the Commission’s Public Document Date of application for amendments: Room, located at One White Flint North, March 23, 2004, as supplemented June Tennessee Valley Authority, Docket No. Public File Area 01F21, 11555 Rockville 16, 2004. 50–390 Watts Bar Nuclear Plant, Unit 1, Pike (first floor), Rockville, Maryland. Brief description of amendments: The Rhea County, Tennessee Publicly available records will be amendments relocate the Independent Date of application for amendments: accessible from the Agencywide Onsite Safety Review Group October 29, 2004. Documents Access and Management requirements from the Administrative Brief description of amendments: Systems (ADAMS) Public Electronic Controls in Section 6 of the Technical Provide a one-time change to Function Reading Room on the internet at the Specifications to the Exelon Generation 4a, ‘‘Reactor Coolant System (RCS) Hot NRC Web site, http://www.nrc.gov/ Company, LLC (EGC)/AmerGen Energy Leg Temperature Indication,’’ of reading-rm/adams.html. If you do not Company, LLC (AmerGen) Quality Technical Specification Table 3.3.4–1. have access to ADAMS or if there are Assurance Topical Report (QATR) at This would allow continued operation problems in accessing the documents TMI–1 and OCNGS. In addition, until the next refueling outage (spring of located in ADAMS, contact the NRC administrative corrections are included, 2005) with one out of four RCS hot leg Public Document Room (PDR) Reference which update references to the EGC/ temperature indications inoperable in staff at 1–800–397–4209, (301) 415– AmerGen QATR, which has replaced the Auxiliary Control Room. 4737 or by e-mail to [email protected]. (Note: the OCNGS and TMI–1 Operational Date of publication of individual Public access to ADAMS has been Quality Assurance Plans. notice in the Federal Register: temporarily suspended so that security Date of issuance: November 8, 2004. November 5, 2004 (69 FR 64596). reviews of publicly available documents Effective date: As of the date of Expiration date of individual notice: may be performed and potentially issuance and shall be implemented November 19, 2004. sensitive information removed. Please within 60 days. Amendment Nos.: 251 and 252. Notice of Issuance of Amendments to check the NRC Web site for updates on Facility Operating License Nos. DPR– Facility Operating Licenses the resumption of ADAMS access.) 16 and DPR–50: Amendments revised During the period since publication of AmerGen Energy Company, LLC, et al., the Technical Specifications. the last biweekly notice, the Docket No. 50–219, Oyster Creek Date of initial notices in Federal Commission has issued the following Nuclear Generating Station, Ocean Register: May 11, 2004 (69 FR 26186). amendments. The Commission has County, New Jersey The supplement dated June 16, 2004, determined for each of these Date of application for amendment: provided additional information that amendments that the application August 27, 2004, as supplemented by clarified the application, did not expand complies with the standards and letters dated October 11 and 19, 2004. the scope of the application as originally requirements of the Atomic Energy Act Brief description of amendment: The noticed, and did not change the NRC of 1954, as amended (the Act), and the amendment revised the Technical staff’s original proposed no significant Commission’s rules and regulations. Specifications, Section 2.1.A, changing hazards consideration determinations. The Commission has made appropriate the safety limit minimum critical power The Commission’s related evaluation findings as required by the Act and the ratio value from 1.09 to 1.10 for both of the amendments is contained in a

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Safety Evaluation dated November 8, Facility Operating License Nos. NPF– Date of initial notice in Federal 2004. 11 and NPF–18: The amendments Register: June 22, 2004 (69 FR 34703) No significant hazards consideration revised the TS. The Commission’s related evaluation comments received: No. Date of initial notice in Federal of the amendment is contained in a Register: April 13, 2004 (69 FR 19569). safety evaluation dated November 8, AmerGen Energy Company, LLC, The Commission’s related evaluation 2004. Docket No. 50–289, Three Mile Island of the amendments is contained in a No significant hazards consideration Nuclear Station, Unit 1 (TMI–1), Safety Evaluation dated November 19, comments received: No. Dauphin County, Pennsylvania 2004. Southern Nuclear Operating Company, Date of application for amendment: No significant hazards consideration comments received: No. Inc., Georgia Power Company, April 23, 2004. Oglethorpe Power Corporation, Brief description of amendment: The Nuclear Management Company, LLC, Municipal Electric Authority of amendment deletes Technical Docket No. 50–255, Palisades Plant, Georgia, City of Dalton, Georgia, Docket Specification Section 6.16, ‘‘Post- Van Buren County, Michigan Nos. 50–321 and 50–366, Edwin I. Accident Sampling Programs NUREG Date of application for amendment: Hatch Nuclear Plant, Units 1 and 2, 0737 (II.B.3, II–F.1.2),’’ and the related December 23, 2003. Appling County, Georgia requirements to maintain a Post Brief description of amendment: The Date of application for amendments: Accident Sampling System. amendment modifies technical June 22, 2004, as supplemented on Date of issuance: November 22, 2004. specification (TS) requirements to adopt September 27, 2004. Effective date: As of the date of the provisions of Industry/TS Task Brief description of amendments: The issuance and shall be implemented Force (TSTF) change TSTF–359, amendments revise the frequency within 180 days. ‘‘Increased Flexibility in Mode associated with Surveillance Amendment No.: 253. Restraints.’’ Requirement (SR) 3.3.8.1.4, which Facility Operating License No. DPR– Date of issuance: November 10, 2004. directs the performance of the logic 50. Amendment revised the Technical Effective date: As of the date of system functional test, from once every Specifications. issuance and shall be implemented 18 months to once every 24 months. The Date of initial notice in Federal within 120 days. amendments change the SRs in Hatch, Register: August 31, 2004 (69 FR Amendment No.: 219. Units 1 and 2 Technical Specifications. 26187) Facility Operating License No. DPR– Date of issuance: November 22, 2004. The Commission’s related evaluation 20. Amendment revised the Technical Effective date: As of the date of of the amendment is contained in a Specifications. issuance and shall be implemented Safety Evaluation dated November 22, Date of initial notice in Federal within 30 days from the date of 2004. Register: September 16, 2004 (69 FR issuance. No significant hazards consideration 55844). Amendment Nos.: 243/186. comments received: No. The Commission’s related evaluation Renewed Facility Operating License of the amendment is contained in a Nos. DPR–57 and NPF–5: Amendments Exelon Generation Company, LLC, Safety Evaluation dated November 10, revised the Surveillance Requirements Docket Nos. 50–373 and 50–374, 2004. in the Technical Specifications. LaSalle County Station, Units 1 and 2, No significant hazards consideration Date of initial notice in Federal LaSalle County, Illinois comments received: No. Register: August 3, 2004 (69 FR 46592). The supplement dated September 27, Date of application for amendments: Omaha Public Power District, Docket 2004, provided clarifying information March 12, 2004, and supplemented by No. 50–285, Fort Calhoun Station, Unit that did not change the scope of the letters dated June 16 and September 2, No. 1, Washington County, Nebraska 2004. June 22, 2004, application nor the initial Date of amendment request: May 14, Brief description of amendments: The proposed no significant hazards 2004. amendments modify the LaSalle consideration determination. Brief description of amendment: The The Commission’s related evaluation Technical Specifications (TS) to amendment relocates the requirements of the amendments is contained in a eliminate selected response time testing of Technical Specification 3.3(1)a, Safety Evaluation dated November 22, requirements associated with Reactor ‘‘Reactor Coolant System and Other 2004. Protection System instrumentation and Components Subject to ASME XI Boiler No significant hazards consideration Primary Containment Isolation & Pressure Vessel Code Inspection and comments received: No. instrumentation for Main Steam Line Testing Surveillance’’ and TS 3.4, Tennessee Valley Authority (TVA), Isolation functions. Specifically, the ‘‘Reactor Coolant System Integrity Docket No. 50–390, Watts Bar Nuclear changes revise the response time testing Testing,’’ to the Updated Safety Plant, Unit 1, Rhea County, Tennessee requirements for TS Section 3.3.1.1, Analysis Report (USAR). Requirements ‘‘Reactor Protection System (RPS) in TS 3.3(1)a were related to inservice Date of amendment request: October Instrumentation,’’ Reactor Vessel Steam inspection of ASME Class 1, 2, and 3 29, 2004, as supplemented November 5, Dome Pressure—High function and TS components and requirements in TS 3.4 2004. Section 3.3.6.1, ‘‘Primary Containment were related to reactor coolant system Description of amendment request: Isolation Instrumentation,’’ Reactor integrity testing. The amendment provides a one-time Vessel Water Level—Low Low Low, Date of issuance: November 8, 2004. change to Function 4a, ‘‘Reactor Coolant Level 1 and Main Steam Line Pressure— Effective date: November 8, 2004, and System (RCS) Hot Leg Temperature Low functions. shall be implemented within 120 days Indication,’’ of Technical Specification Date of issuance: November 19, 2004. from the date of issuance. (TS) Table 3.3.4–1 to allow continued Effective date: As of the date of Amendment No.: 230. operations until the next refueling issuance and shall be implemented Renewed Facility Operating License outage with one out of four RCS Hot Leg within 30 days. No. DPR–40: The amendment revised Temperature Indications inoperable in Amendment Nos.: 169, 155. the Technical Specifications. the Auxiliary Control Room.

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Date of Issuance: November 19, 2004. (44 U.S.C. 3501 et seq.), the Securities collection of information on Effective date: As of the date of and Exchange Commission respondents, including through the use issuance and shall be implemented (‘‘Commission’’) is soliciting comments of automated collection techniques or immediately upon receipt. on the collection of information other forms of information technology. Amendment No.: 53. summarized below. The Commission Consideration will be given to Facility Operating License No. (NPF– plans to submit this existing collection comments and suggestions submitted in 90): Amendment revised the Technical of information to the Office of writing within 60 days of this Specifications. Management and Budget for extension publication. Public comments requested as to and approval. Please direct your written comments proposed no significant hazards Rule 17a–4 requires exchange to R. Corey Booth, Director/Chief consideration (NSHC): Yes. On members, brokers and dealers to Information Officer, Office of November 5, 2004, the Commission preserve for prescribed periods of time Information Technology, Securities and issued a notice (69 FR 64596) that certain records required to be made by Exchange Commission, 450 5th Street, included the staff’s proposed Rule 17a–3. In addition, Rule 17a–4 NW., Washington, DC 20549. determination that the amendment requires the preservation of records Dated: November 29, 2004. request involves no significant hazards required to be made by other Jill M. Peterson, consideration (NSHC). The notice Commission rules and other kinds of Assistant Secretary. provided an opportunity to submit records which firms make or receive in comments on the Commission’s the ordinary course of business. These [FR Doc. E4–3498 Filed 12–6–04; 8:45 am] proposed NSHC determination. No include, but are not limited to, bank BILLING CODE 8010–01–P comments have been received. The statements, cancelled checks, bills notice also provided an opportunity to receivable and payable, originals of SECURITIES AND EXCHANGE request a hearing by November 19, 2004, communications, and descriptions of COMMISSION but indicated that if the Commission various transactions. Rule 17a–4 also makes a final NSHC determination, any permits broker-dealers to employ, under Submission for OMB Review; such hearing would take place after certain conditions, electronic storage Comment Request issuance of the amendment. The media to maintain records required to supplement of November 5, 2004, is be maintained under Rules 17a–3 and Upon Written Request, Copies Available within the scope of that notice, and did 17a–4. From: Securities and Exchange not change the proposed no significant There are approximately 6,900 active, Commission, Office of Filings and hazards consideration. registered broker-dealers. The staff Information Services, Washington, DC The Commission’s related evaluation estimates that the average amount of 20549. of the amendment, finding of exigent time necessary to preserve the books Extension: Rule 17f–1(g); SEC File No. 270– circumstances, state consultation, and and records as required by Rule 17a–4 30; OMB Control No. 3235–0290 final NSHC determination are contained is 254 hours per broker-dealer per year. in a safety evaluation dated November Notice is hereby given that, pursuant Thus the staff estimates that the total to the Paperwork Reduction Act of 1995 19, 2004. compliance burden for 6,900 Attorney for licensee: General (44 U.S.C. 3501 et seq.), the Securities respondents is 1,752,600 hours. and Exchange Commission Counsel, Tennessee Valley Authority, The staff believes that compliance 400 West Summit Hill Drive, ET 11A, (‘‘Commission’’) has submitted to the personnel would be charged with Office of Management and Budget a Knoxville, Tennessee 37902. ensuring compliance with Commission NRC Section Chief: Michael L. request for extension of the previously regulation, including Rule 17a–4. The approved collection of information Marshall, Jr. staff estimates that the hourly salary of 1 discussed below. Dated at Rockville, Maryland, this 29th day a compliance manager is $50 per hour. • Rule 17f–1(g) Requirements for of November, 2004. Based upon these numbers, the total For the Nuclear Regulatory Commission. reporting and inquiry with respect to cost of compliance for 6,900 missing, lost, counterfeit, or stolen Ledyard B. Marsh, respondents is approximately $87.63 securities. Director, Division of Licensing Project million (1,752,600 yearly hours x $50). Rule 17f–1(g), under the Securities Management, Office of Nuclear Reactor The total burden hour decrease of Exchange Act of 1934 (‘‘Act’’), requires Regulation. 128,661 results from the decrease in the that all reporting institutions (i.e., every [FR Doc. 04–26606 Filed 12–6–04; 8:45 am] number of respondents from 7,217 to national securities exchange, member BILLING CODE 7590–01–P 6,900. thereof, registered securities association, Written comments are invited on: (a) broker, dealer, municipal securities Whether the proposed collection of dealer, registered transfer agent, SECURITIES AND EXCHANGE information is necessary for the proper registered clearing agency, participant COMMISSION performance of the functions of the therein, member of the Federal Reserve agency, including whether the System, and bank insured by the FDIC) Proposed Collection; Comment information shall have practical utility; maintain and preserve a number of Request (b) the accuracy of the agency’s estimate documents related to their participation of the burden of the proposed collection Upon written request, copies available in the Lost and Stolen Securities of information; (c) ways to enhance the from: Securities and Exchange Program (‘‘Program’’) under Rule 17f–1. quality, utility, and clarity of the Commission, Office of Filings and The following documents must be kept information to be collected; and (d) Information Services, Washington, DC in an easily accessible place for three ways to minimize the burden of the 20549. years, according to paragraph (g): (1) Extension: Rule 17a–4; SEC File No. Copies or all reports of theft or loss 1 This figure is based on the SIA Report on Office 270–198; OMB Control No. 3235–0279. Salaries In the Securities Industry 2003 (Form X–17F–1A) filed with the Notice is hereby given that pursuant (Compliance Manager) and includes 35% for Commission’s designee: (2) all to the Paperwork Reduction Act of 1995 overhead charges. agreements between reporting

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institutions regarding registration in the November 30, 2004. Rule 24.9—Terms of Index Option Program or other aspects of Rule 17f–1; Jill M. Peterson, Contracts and (3) all confirmations or other Assistant Secretary. Rule 24.9(a)–(c) No Change. information received from the [FR Doc. E4–3499 Filed 12–6–04; 8:45 am] * * * Interpretations and Policies: Commission or its designee as a result BILLING CODE 8010–01–P .01 The procedures for adding and of inquiry. deleting strike prices for index options Reporting institutions utilize these are provided in Rule 5.5 and records and reports (a) to report missing, SECURITIES AND EXCHANGE Interpretations and Policies related lost, stolen or counterfeit securities to COMMISSION thereto, as otherwise generally provided the database, (b) to confirm inquiry of by Rule 24.9, and include the following: the database, and (c) to demonstrate [Release No. 34–50759; File No. SR–CBOE– (a) The interval between strike prices compliance with Rule 17f–1. The 2004–74] will be no less than $5.00; provided, Commission and the reporting that in the case of the following classes institutions’ examining authorities Self-Regulatory Organizations; of index options, the interval between utilize these records to monitor the Chicago Board Options Exchange, strike prices will be no less than $2.50: incidence of thefts and losses incurred Incorporated; Notice of Filing and [Add the following to the end of the by reporting institutions and to Immediate Effectiveness of a Proposed current list] determine compliance with Rule 17f–1. Rule Change Relating to Options on European-Style Exercise S&P 100 If such records were not retained by Revised-Value Versions of the Index Options (XEO) (1⁄5th value), if the reporting institutions, compliance with European-Style Exercise, P.M.-Settled strike price is less than $200.00. Rule 17f–1 could not be monitored Option Contract on the Standard & (b)–(d) No change. effectively. Poor’s 100 Stock Index .02–.11 No change. The Commission estimates that there November 30, 2004. II. Self-Regulatory Organization’s are 25,714 reporting institutions Pursuant to section 19(b)(1) of the Statement of the Purpose of, and (respondents) and, on average, each Statutory Basis for, the Proposed Rule respondent would need to retain 33 Securities Exchange Act of 1934 1 2 Change records annually, with each retention (‘‘Act’’), and Rule 19b–4 thereunder, requiring approximately 1 minute (33 notice is hereby given that on November In its filing with the Commission, the minutes or .55 hours). The total 17, 2004, the Chicago Board Options CBOE included statements concerning estimated annual burden is 14,142.7 Exchange, Incorporated (‘‘CBOE’’ or the purpose of and basis for the hours (25,714 × .55 hours = 14,142.7). ‘‘Exchange’’) filed with the Securities proposed rule change and discussed any Assuming an average hourly cost for and Exchange Commission comments it received on the proposed clerical work of $20.00, the average total (‘‘Commission’’) the proposed rule rule change. The text of those yearly record retention cost for each change as described in items I and II statements may be examined at the respondent would be $11.00. Based on below, which items have been prepared places specified in item IV below. The these estimates, the total annual cost for by the CBOE. The Exchange has filed Exchange has prepared summaries, set the estimated 25,714 reporting the proposal as a ‘‘non-controversial’’ forth in sections A, B, and C below, of institutions would be approximately rule change pursuant to section the most significant aspects of such 19(b)(3)(A)(iii) of the Act,3 and Rule statements. $282,854. 4 Rule 17f–1(g) does not require 19b–4(f)(6) thereunder, which renders the proposal effective upon filing with A. Self-Regulatory Organization’s periodic collection, but does require 5 Statement of the Purpose of, and the retention of records generated as a result the Commission. The Commission is publishing this notice to solicit Statutory Basis for, the Proposed Rule of compliance with Rule 17f–1. Under Change Section 17(b) and (f) of the Act, the comments on the proposed rule change information required by Rule 17f–1(g) is from interested persons. 1. Purpose available to the Commission and I. Self-Regulatory Organization’s Since July 2001, the Exchange has Federal bank regulators for Statement of the Terms of Substance of listed for trading cash-settled and P.M.- examinations or collection purposes. the Proposed Rule Change settled options with European-style Rule 0–4 of the Act deems such exercise on the Standard & Poor’s 100 The CBOE proposes to introduce for information to be confidential. Please Stock Index (‘‘S&P 100 Index’’).6 These trading revised-value versions of the note that an agency may not conduct or options trade on the CBOE under the European-style, P.M.-settled option sponsor, and a person is not required to symbol XEO.7 contract on the Standard & Poor’s 100 The purpose of this respond to, a collection of information Stock Index that is currently listed and proposed rule change filing is to allow unless it displays a currently valid traded on the Exchange. The text of the the Exchange to list European-style control number. proposed rule change is below. exercise, cash-settled, P.M.-settled General Comments regarding the Proposed new language is in italics. options on (1) an increased-value above information should be directed to version of the XEO, and (2) a reduced- the following persons: (i) Desk Officer CHAPTER XXIV value version of the XEO. The Exchange for the Securities and Exchange Index Options Commission, by sending an e-mail to 6 The S&P 100 Index is a broad-based, [email protected]; and (ii) R. * * * * * capitalization-weighted index that is based on 100 highly capitalized stocks from a broad range of Corey Booth, Director/Chief Information industries. CBOE has traded cash-settled options 1 Officer, Office of Information 15 U.S.C. 78s(b)(1). with American-style exercise on the S&P 100 Index Technology, Securities and Exchange 2 17 CFR 240.19b–4. since 1983, under the trading symbol OEX. 3 Commission, 450 5th Street, NW., 15 U.S.C. 78s(b)(3)(A)(iii). 7 See Securities Exchange Act Release No. 44556 4 17 CFR 240.19b–4(f)(6). (July 16, 2001), 66 FR 38046 (July 20, 2001) (Notice Washington, DC 20549. Comments must 5 The CBOE asked the Commission to waive the of Filing and Immediate Effectiveness which be submitted to OMB within 30 days of 30-day operative delay. See Rule 19b–4(f)(6)(iii). 17 allowed CBOE to list European-style exercise, cash- this notice. CFR 240.19b–4(f)(6)(iii). settled options on the XEO).

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is proposing to offer these particular membership prior to the listing of cease at 3:15 p.m. (c.s.t.) on the business new versions of the XEO option to options series on the Increased-Value day preceding the last day of trading in accommodate the needs of a broader and Reduced-Value XEO. Additionally, the component securities of the Index range of investors than is currently the Exchange will disseminate prices for (ordinarily the Thursday before served by listing options only on the the Increased-Value and Reduced-Value expiration Saturday, unless there is an XEO. XEO contracts every 15 seconds through intervening holiday). The exercise- the Option Price Reporting Authority. Increased-Value Options on the XEO settlement value of the Index at option Strike price intervals on the expiration will be calculated by CBOE proposes to list a European- Increased-Value XEO shall be identical Standard and Poor’s based on the style exercise, cash-settled, P.M.-settled to the strike price intervals for normal exercise-settlement value, OEX, is option that is based on two times the XEO options, which are currently set to calculated using the last (closing) value of the XEO (‘‘Increased-Value bracket the S&P Index in 5-point reported sales price in the primary XEO’’). The Exchange believes that increments. Strike prices for Reduced- offering Increased-Value XEO options Value XEO options will be set to bracket market of each component stock on the last business day before the expiration will attract large institutional customers the index in 21⁄2 point increments for who seek a greater exposure to the strikes at or below 200 and in 5-point date. If a component security fails to underlying component stocks that make increments above 200. The minimum open for trading, the exercise settlement up the S&P 100 Index. With one tick size for Increased-Value and value will be determined in accordance Increased-Value XEO contract, an Reduced-Value XEO series trading with CBOE Rules 24.7(e) and 24.9(a)(4). institutional customer will be able to below $3 will be 0.05 and for series When the last trading day is moved gain twice the exposure to the S&P 100 trading above $3 the minimum tick will because of Exchange holidays (such as Index than with one normal XEO be 0.10. The trading hours for Increased- when CBOE is closed on the Friday contract. Value and Reduced-Value XEO before expiration), the last trading day Reduced-Value Options on the XEO contracts will be from 8:30 a.m. to 3:15 for expiring options will be Wednesday p.m. c.s.t. and the exercise settlement value of CBOE also proposes to list a index options at expiration will be Position Limits European-style exercise, cash-settled, determined at the opening of regular P.M.-settled option that is based on one- Consistent with CBOE Rule 24.4(d), trading on Thursday. fifth (1⁄5th) the value of the XEO there are no position limits for broad- (‘‘Reduced-Value XEO’’). The Exchange based index option contracts on the S&P 100 Index Maintenance believes that offering Reduced-Value OEX,9 or similarly, for XEO options.10 XEO options will allow CBOE to attract The approval order giving CBOE the Because the underlying S&P 100 additional business from customers that authority to list options on the XEO Index is monitored and maintained by may not otherwise be able to invest in notes that, because the only difference Standard and Poor’s, Standard and regular XEO or Increased-Value XEO between OEX and XEO options is the Poor’s will be responsible for making all options. To illustrate, currently an manner in which the respective necessary adjustments to the S&P 100 October XEO 545 call would cost an contracts are exercised (i.e., ‘‘American- Index to reflect component deletions, investor approximately $710, whereas style’’ versus ‘‘European-style’’), XEO share changes, stock splits, stock with a Reduced-Value XEO, the 1⁄5th series may also be traded without dividends (other than an ordinary cash version of the same call would only cost position limits for the purposes of CBOE dividend), and stock price adjustments an investor $142.8 The Exchange Rule 24.4(d).11 Similarly, the Exchange due to restructuring, mergers, or spin- believes that the Reduced-Value XEO believes that Increased-Value and offs involving the underlying will allow retail investors to obtain a Reduced-Value XEO options are no components. Some corporate actions, hedge that is more proportionate to their different than the regular XEO options, such as stock splits and stock dividends, respective positions in the stocks that other than the fact that one contract is require simple changes to the available comprise the S&P 100 Index and that based on twice the value of the S&P 100 shares outstanding and the stock prices will not require as large an outlay of Index, and one contract is based on one- of the underlying components. Other capital as the regular XEO options. fifth the value of the S&P 100 Index, corporate actions, such as share The Exchange believes that both the respectively. As such, Increased-Value issuances, change the market value of Reduced-Value and Increased-Value and Reduced-Value XEO options shall the Index and would require the use of options on the XEO should attract a not be subject to any position limits. an index divisor to effect adjustments. wider range of investors and, in turn, create a more active and liquid trading Exercise and Settlement Surveillance environment for S&P 100 Index options. Exercise and settlement on both the The Exchange will continue listing and Increased-Value XEO and the Reduced- Because the S&P 100 Index trading the current XEO options Value XEO options will be identical to underlying the increased-value and the contract and both the Increased-Value existing XEO options. Series in both the reduced-value options remains XEO options and the Reduced-Value Increased-Value XEO and the Reduced- unchanged, the Exchange will use the XEO options will trade under their own Value XEO will expire on the Saturday same procedures used in the respective trading symbols. following the third Friday of the surveillance of XEO options for The Commission and The Options expiration month. Trading in the surveillance in the trading of the Clearing Corporation will be notified of expiring contract month will normally Increased-Value XEO and Reduced- the new trading symbols and CBOE will Value XEO options. Further, CBOE issue a circular detailing the option 9 See Securities Exchange Act Release No. 44994 represents that these surveillance contract specifications to CBOE (October 26, 2001), 66 FR 55722 (November 2, 2001) procedures are adequate to monitor the (order approving CBOE’s rule change, which trading in both Increased-Value XEO 8 proposed the elimination of position and exercise Estimates are based on a randomly selected last and Reduced-Value XEO options, as sale price (intra day) for the 2004 OCT 545.00 call limits for OEX, SPX, and DJX index options). on the XEO during the September 15, 2004, trading 10 See supra note 7. well as in LEAPS on the same respective day. 11 See supra note 9. options.

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Margin 2. Statutory Basis filing requirement. The Exchange The S&P 100 Index is a ‘‘broad-based The Exchange believes that the further requested that the Commission index’’ and, under CBOE margin rules addition of Increased-Value XEO and waive the 30-day operative delay, as the margin requirement for a short put Reduced-Value XEO option series specified in Rule 19b–4(f)(6)(iii), and or call on each respective Increased- creates new investment options for a designate the proposed rule change to Value XEO and Reduced-Value XEO broader range of customers that will become operative on November 18, option contract shall be 100% of the appeal to many institutions, 2004. The Commission notes that the current market value of the contract professional traders, and investors. The proposed rule change does not raise any plus up to 15% of the respective Exchange believes that the introduction new, novel or complex regulatory issues 12 of these options will attract additional because the Exchange currently trades underlying index value. More 20 specifically, for purchases of puts or order-flow to the index floor and will the XEO contracts. The proposed rule calls with more than 9 months until increase liquidity in these options in the change would permit a reduced value expiration, customers must deposit and market in general. For these reasons, the version and an increased value version continue to maintain 75% of the total Exchange believes that the proposed of the XEO products to be traded. These cost of the option’s current market rule change is consistent with section products should accommodate the value. When time to expiration reaches 6(b) of the Act 15 in general, and in needs of a broader range of investors 9 months, the option no longer has particular with section 6(b)(5) of the investing in the options market. The value for margin purposes. Purchases of Act 16 in that it is designed to promote Commission believes, therefore, that it puts or calls with 9 months or less until just and equitable principles of trade as is consistent with the protection of expiration must be paid for in full. well as to protect investors and the investors and the public interest to Writers of uncovered puts or calls must public interest. waive the 30-day pre-operative period in this case, and has determined to deposit and continue to maintain 100% B. Self-Regulatory Organization’s of the option proceeds plus 15% of the designate the operative date to be Statement on Burden on Competition November 18, 2004, the date requested aggregate contract value (current index 21 level x $100) minus the amount by CBOE does not believe that the by the Exchange. Allowing the rule which the option is out-of-the-money, if proposed rule change will impose any change to become operative on any, subject to a minimum for calls of burden on competition. November 18, 2004, will allow the option proceeds plus 10% of the Exchange to begin listing and trading C. Self-Regulatory Organization’s the new options as soon as possible after aggregate contract value and a minimum Statement on Comments on the for puts of option proceeds plus 10% of the November expiration and will allow Proposed Rule Change Received from investors to establish positions during the aggregate exercise price amount.13 Members, Participants, or Others The Exchange also notes that the earliest portion of the monthly Interpretation and Policy .04 to CBOE No written comments were solicited cycle. Rule 24.4, which authorizes the or received with respect to the proposed At any time within 60 days of the imposition of additional margin in OEX rule change. filing of the proposed rule change, the positions, shall also apply to all XEO III. Date of Effectiveness of the Commission may summarily abrogate option series, which are based on the Proposed Rule Change and Timing for such rule change if it appears to the same underlying index as OEX option Commission Action Commission that such action is series.14 necessary or appropriate in the public The Exchange asserts that the interest, for the protection of investors, Other Exchange Rules Applicable foregoing proposed rule change has or otherwise in furtherance of the Except as modified herein, the Rules become effective upon filing pursuant to purposes of the Act.22 section 19(b)(3)(A) of the Act 17 and in Chapter XXIV will govern the trading 18 IV. Solicitation of Comments of Increased-Value XEO and Reduced- Rule 19b–4(f)(6) thereunder because it Value XEO options on the Exchange. does not: Interested persons are invited to (i) Significantly affect the protection Additionally, in accordance with CBOE submit written data, views, and of investors or the public interest; Rule 24A.4(b) (Special Terms for FLEX arguments concerning the foregoing, (ii) Impose any significant burden on Index Options), CBOE reserves the right including whether the proposed rule competition; and change is consistent with the Act. to approve and open for trading FLEX (iii) Become operative for 30 days Comments may be submitted by any of options on the Increased-Value XEO and from the date of filing, or such shorter the following methods: Reduced-Value XEO and, in accordance time as the Commission may designate with CBOE Rule 24A.7(a)(i), because the if consistent with the protection of Electronic Comments Increased-Value XEO and Reduced- investors and the public interest. • Use the Commission’s Internet Value XEO are both broad-based A proposed rule change filed under comment form (http://www.sec.gov/ indexes, there shall be no position or Rule 19b–4(f)(6) 19 normally does not exercise limits for these FLEX index rules/sro.shtml); or become operative prior to 30 days after • options. Finally, CBOE affirms that it the date of filing. However, Rule 19b– Send an e-mail to rule- possesses the necessary systems 4(f)(6)(iii) permits the Commission to [email protected]. Please include File capacity to support new series that designate a shorter time if such action Number SR–CBOE–2004–74 on the would result from the introduction of is consistent with the protection of subject line. the aforementioned index options. investors and the public interest. The Exchange satisfied the five-day pre- 20 See supra note 7. 12 See CBOE Rule 12.3(c)(5)(A). 21 For the purposes only of accelerating the 13 For calculating maintenance margin, the operative date of this proposal, the Commission has 15 option’s current market value, as opposed to the 15 U.S.C. 78f(b). considered the proposed rule’s impact on total cost/option proceeds method, must be used. 16 15 U.S.C. 78f(b)(5). efficiency, competition, and capital formation. See Additional margin may be required pursuant to 17 15 U.S.C. 78s(b)(3)(A). 15 U.S.C. 78c(f). CBOE Rule 12.10. 18 17 CFR 240.19b–4(f)(6). 22 See section 19(b)(3)(C) of the Act, 15 U.S.C. 14 See supra note 7. 19 17 CFR 240.19b–4(f)(6). 78s(b)(3)(C).

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Paper Comments SECURITIES AND EXCHANGE proposed rule change (SR–CBOE–2004– COMMISSION 64) be, and it hereby is, approved. • Send paper comments in triplicate For the Commission, by the Division of to Jonathan G. Katz, Secretary, [Release No. 34–50775; File No. SR–CBOE– Market Regulation, pursuant to delegated Securities and Exchange Commission, 2004–64] authority.7 450 Fifth Street, NW., Washington, DC Jill M. Peterson, 20549–0609. Self-Regulatory Organizations; Assistant Secretary. All submissions should refer to File Chicago Board Options Exchange, [FR Doc. E4–3515 Filed 12–6–04; 8:45 am] Number SR–CBOE–2004–74. This file Inc.; Order Approving Proposed Rule BILLING CODE 8010–01–P number should be included on the Change Relating to the Allocation of N- subject line if e-mail is used. To help the Second Group Trades Pursuant to Commission process and review your Rule 6.45A(c) SECURITIES AND EXCHANGE COMMISSION comments more efficiently, please use December 1, 2004. only one method. The Commission will On October 14, 2004, the Chicago [Release No. 34–50773; File No. SR–MSRB– post all comments on the Commission’s 2004–08] Board Options Exchange, Inc., (‘‘CBOE’’ Internet Web site (http://www.sec.gov/ or ‘‘Exchange’’) submitted to the rules/sro.shtml). Copies of the Self-Regulatory Organizations; Notice Securities and Exchange Commission submission, all subsequent of Filing of Proposed Rule Change by (‘‘Commission’’), pursuant to Section the Municipal Securities Rulemaking amendments, all written statements 19(b)(1) of the Securities Exchange Act with respect to the proposed rule Board Relating to Amendments to of 1934 (‘‘Act’’)1 and Rule 19b–4 MSRB Rule G–34, on CUSIP Numbers change that are filed with the 2 thereunder, a proposed rule change to and New Issue Requirements, To Commission, and all written eliminate the Designated Primary Facilitate Real-Time Transaction communications relating to the Market-Maker (‘‘DPM’’) participation Reporting of Trades in New Issue proposed rule change between the entitlement for trades occurring Municipal Securities Commission and any person, other than pursuant to CBOE Rule 6.45A(c). The those that may be withheld from the Commission published the proposed December 1, 2004. public in accordance with the rule change for comment in the Federal Pursuant to section 19(b)(1) of the provisions of 5 U.S.C. 552, will be Register on November 1, 2004.3 The Securities Exchange Act of 1934 available for inspection and copying in Commission received no comments on (‘‘Act’’),1 and Rule 19b–4 thereunder,2 the Commission’s Public Reference the proposed rule change. notice is hereby given that on November Section, 450 Fifth Street, NW., After careful consideration, the 18, 2004, the Municipal Securities Washington, DC 20549. Copies of such Commission finds that the proposed Rulemaking Board (‘‘MSRB’’ or filing also will be available for rule change is consistent with the ‘‘Board’’) filed with the Securities and inspection and copying at the principal requirements of the Act and the rules Exchange Commission (‘‘SEC’’ or office of the CBOE. All comments and regulations thereunder that are ‘‘Commission’’) the proposed rule received will be posted without change; applicable to a national securities change as described in items I, II, and III below, which items have been the Commission does not edit personal exchange.4 In particular, the prepared by the MSRB. The identifying information from Commission believes that the proposed Commission is publishing this notice to submissions. You should submit only rule change is consistent with Section 6(b)(5) of the Act,5 which requires solicit comments on the proposed rule information that you wish to make change from interested persons. available publicly. All submissions among other things, that the rules of the should refer to File Number SR–CBOE– Exchange are designed to prevent I. Self-Regulatory Organization’s 2004–74 and should be submitted on or fraudulent and manipulative acts and Statement of the Terms of Substance of before December 28, 2004. practices, to promote just and equitable the Proposed Rule Change principles of trade, and, in general, to For the Commission, by the Division of The MSRB is filing a proposed rule protect investors and the public interest. change consisting of an amendment to Market Regulation, pursuant to delegated The Commission believes that by authority.23 its rule G–34, on CUSIP numbers and eliminating the DPM participation new issue requirements, to facilitate Jill M. Peterson, entitlement for trades occurring real-time transaction reporting of trades Assistant Secretary. pursuant to CBOE Rule 6.45A(c), DPMs in new issue municipal securities. [FR Doc. E4–3513 Filed 12–6–04; 8:45 am] will be treated as any other market Below is the text of the proposed rule BILLING CODE 8010–01–P participant under the rule, allowing all change. Proposed new language is in market participants to be on equal italics; proposed deletions are in footing. brackets. It is therefore ordered, pursuant to * * * * * Section 19(b)(2) of the Act,6 that the Rule G–34: CUSIP Numbers and New Issue Requirements 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. (a) New Issue Securities. 3 Securities Exchange Act Release No. 50583 (i) Assignment of CUSIP Numbers. (October 22, 2004), 69 FR 63418 (November 1, (A) Except as otherwise provided in 2004). this section (a), each broker, dealer or 4 In approving this proposed rule change, the Commission notes that it has considered the municipal securities dealer who proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 7 17 CFR 200.30–3(a)(12). 5 15 U.S.C. 78f(b)(5). 1 15 U.S.C. 78s(b)(1). 23 17 CFR 200.30–3(a)(12). 6 15 U.S.C. 78s(b)(2). 2 17 CFR 240.19b–4.

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acquires, whether as principal or agent, securities on which the issuer or a are made to syndicate or selling group a new issue of municipal securities from person acting on behalf of the issuer has members, whichever date is later]. the issuer of such securities for the submitted an application for assignment (D) No changes. purpose of distributing such new issue of a CUSIP number or numbers. [to such (iii) No changes. (‘‘underwriter’’) shall apply in writing to issue to the Board or its designee.] (b)–(c) No changes. the Board or its designee for assignment (D) In the event that the proceeds of * * * * * of a CUSIP number or numbers to such the new issue will be used, in whole or II. Self-Regulatory Organization’s new issue. The [broker, dealer or in part, to refund an outstanding issue Statement of the Purpose of, and municipal securities dealer] underwriter or issues of municipal securities in such Statutory Basis for, the Proposed Rule shall make such application as promptly a way that part but not all of the Change as possible, but in no event later than, outstanding issue or issues previously in the case of negotiated sales, a time assigned a single CUSIP number is to be In its filing with the Commission, the sufficient to ensure assignment of a refunded to one or more redemption MSRB included statements concerning CUSIP number or numbers [on or] prior date(s) and price(s) (or all of an the purpose of and basis for the to the [business day on which] time the outstanding issue is to be refunded to proposed rule change and discussed any contract to purchase the securities from more than one redemption date and comments it received on the proposed the issuer is executed; or, in the case of price), the broker, dealer or municipal rule change. The text of these statements competitive sales, the [date of award] securities dealer shall apply in writing may be examined at the places specified time of the first execution of a to the Board or its designee for a in item IV below. The MSRB has transaction in the new issue by the reassignment of a CUSIP number to each prepared summaries, set forth in underwriter. A broker, dealer or part of the outstanding issue refunded to sections A, B, and C below, of the most municipal securities dealer acting as a a particular redemption date and price significant aspects of such statements. financial advisor to an issuer in and shall provide to the Board or its A. Self-Regulatory Organization’s connection with a competitive sale of an designee the following information on Statement of the Purpose of, and issue shall ensure that application for a the issue or issues to be refunded: Statutory Basis for, the Proposed Rule CUSIP number or numbers is made in (1)–(3) No changes. Change sufficient time to permit assignment of The [broker, dealer or municipal 1. Purpose CUSIP numbers prior to the [date] time securities dealer] underwriter also shall of award. [The broker, dealer or provide documentation supporting the On January 31, 2005, the municipal municipal securities dealer shall information provided pursuant to the securities market is scheduled to provide to the Board or its designee] In requirements of this subparagraph (D). complete its conversion from overnight making an application for CUSIP (ii) Application for Depository ‘‘batch’’ systems for trade reporting to number assignment, the following Eligibility, CUSIP Number Affixture and ‘‘real-time’’ systems.3 Beginning on this information shall be provided: Initial Communications. Each [broker, date, amendments to MSRB Rule G–14, (1)–(8) No changes. dealer or municipal securities dealer on transaction reporting, become (B) The information required by effective to require brokers, dealers and subparagraph (i)(A) of this section (a) who acquires, whether as principal or agent, a new issue of municipal municipal securities dealers shall be provided in accordance with (collectively ‘‘dealers’’) to submit most the provisions of this subparagraph. [At securities from the issuer of such securities for the purpose of distributing trade reports within 15 minutes after the time application is made the broker, trade execution rather than by midnight dealer or municipal securities dealer such new issue (‘‘] underwriter [’’)] shall carry out the following functions: on trade date. The purpose of the making such application shall provide proposed rule change is to help dealers to the Board or its designee a] The (A)–(B) No changes. meet these accelerated trade reporting application shall include a copy of a (C) The underwriter[, on initial trade obligations on the first day of trading in notice of sale, official statement, legal date,] shall [communicate] as promptly an issue. opinion, or other similar documentation as possible announce each item of prepared by or on behalf of the issuer, information listed below in a manner Existing Provisions of Rule G–34 or portions of such documentation, reasonably designed to reach market Supporting Overnight Trade Reporting participants that may trade the new reflecting the information required by Rule G–14 currently sets a midnight subparagraph (i)(A) of this section (a). issue. All information shall be announced no later than the time of the deadline on trade date for dealers to Such documentation may be submitted submit trade reports for transaction in preliminary form if no final first execution of a transaction in the 4 new issue by the underwriter. reporting purposes. The requirement documentation is available at the time applies to new issue trades as well as to [the following information to of application. In such event the final secondary market trades. Rule G–34, on syndicate and selling group members]: documentation, or the relevant portions CUSIP numbers and new issue (1) No changes. of such documentation, reflecting any requirements, requires the underwriter 5 changes in the information required by (2) the [initial trade date] time of subparagraph (i)(A) of this section (a) formal award. For purposes of this 3 SR–MSRB–2004–07, November 15, 2004. See shall be submitted when such subparagraph (a)(ii)(C), [initial trade ‘‘Notice of Filing of Implementation Plan for Real- documentation becomes available. If no date] time of formal award shall mean, Time Transaction Reporting System,’’ MSRB Notice such documentation, whether in for competitive issues, [either] the [date] 2004–36, dated November 17, 2004, at http:// www.msrb.org. See also ‘‘Approval by the SEC of preliminary or final form, is available at time [of] the issuer announces the Real-Time Transaction Reporting and Price the time application for CUSIP number award, [or the first date allocations are Dissemination: Rules G–12(f) and G–14,’’ MSRB assignment is made, such copy shall be made to syndicate or selling group Notice 2004–29, dated September 2, 2004, at http:/ provided promptly after the members, whichever date is later,] and, /www.msrb.org. 4 documentation becomes available. for negotiated issues, [either] the [date] See Rule G–14, on transaction reporting, Rule G–14 Procedures, and the Transaction Reporting (C) The provisions of paragraph (i) of time [on which] the contract to purchase User Manual, at http://www.msrb.org. this section (a) shall not apply with the securities from the issuer is 5 Except where context indicates otherwise, respect to any new issue of municipal executed[, or the first date allocations references to ‘‘underwriter’’ in the context of Rule

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of a new issue to take several actions so that have not traded an issue in the event, no later than the time that the that syndicate and selling group previous year may report trades within underwriter executes its first transaction members can report their trades three hours of the time of trade in the issue.11 properly at the end of the first day of execution.8 While many trades executed The requirement to provide this trading in a new issue. Under the during the first day of trading will information ‘‘as promptly as possible’’ existing requirements of the rule, the qualify for one of these exemptions, takes into account that CUSIP numbers underwriter must: (i) Ensure that CUSIP other trades (e.g., ‘‘non-list price’’ trades may be available well in advance of the numbers are assigned to the issue by the by syndicate or selling group members) time of formal award for a negotiated day that the issue is formally awarded; will have to be reported within 15 issue and must be disseminated as soon and (ii) communicate the CUSIP minutes of trade execution. It also as practical after they are known. The numbers and the initial trade date for should be noted that the three-hour ‘‘time of formal award’’ for a negotiated the issue to syndicate and selling group reporting exception, which will issue generally will occur after CUSIP members on the initial trade date. This generally be available to dealers outside numbers are assigned. This information latter provision allows syndicate and the underwriting group on the first day also should be communicated as soon as selling group members to process and of trading, will require accelerated it is known, although it is not intended report their own transactions in the reporting of trades compared with the that this would require an underwriter issue in a coordinated and correct current end-of-day reporting to make such a communication after manner on the initial trade date. requirement. The proposed rule change normal business hours, as might be the The term ‘‘initial trade date’’ is modifies existing provisions of Rule G– case if a BPA is signed at night.12 defined in Rule G–34 as follows: For 34 to ensure that dealers can report In the case of competitive issues, it is negotiated issues, it is the date that the trades in a timely manner in this real- expected that the underwriter winning BPA is executed or the date that time processing environment. an auction would communicate the allocations are first made by the ‘‘Time of Formal Award’’ CUSIP numbers and time of formal underwriter, whichever is later. For award, together, shortly after the issuer Since the timing for trade reports in competitive sales, it is the date the announces the winner of the auction. official award is made by the issuer or a real-time environment generally will be measured from the time of trade However, if there is a lengthy delay the date that allocations are first made between the opening of bids and the by the underwriter, whichever is later. execution rather than the day that the trade occurs, the proposed rule change formal announcement (marking the time This definition gives some flexibility to that trades can be executed), the the underwriter in determining the replaces the concept of ‘‘initial trade date’’ with ‘‘time of formal award.’’ This presumed underwriter would be initial trade date on which trading in an required to disseminate CUSIP numbers issue officially starts. For example, if the term, reflecting the earliest time that a 9 as soon as they are available in order to underwriter chooses not to execute its trade in a new issue can be executed, is defined as: (i) For negotiated issues, facilitate trade processing once the first transactions 6 on the formal award formal award is announced. As date (as might be the case if the BPA is the time that the BPA is executed; and (ii) for competitive issues, the time of discussed in more detail below, it may signed at night), it may instead execute be necessary in some cases for the its first transactions on the next the issuer’s official announcement of the award.10 winner of a competitive sale to delay business day. making the required communication of Proposed Rule Change to Rule G–34 to Communication of CUSIP Numbers, CUSIP numbers (and to delay trade Support Real-Time Trade Reporting Identifying Information and Time of executions) if CUSIP numbers are not Formal Award pre-assigned to the issue prior to the Beginning January 31, 2005, the auction. transaction reporting process for The proposed rule change will ensure It is expected that syndicate and municipal securities will convert to a the dissemination of CUSIP numbers, selling group members often will have ‘‘real-time’’ process, with most trades identifying information and the time of pending orders in a new issue prior to being subject to a 15-minute reporting formal award is made in a manner to its formal award and will await the requirement. Two exceptions in Rule G– allow real-time reporting of transactions in new issue securities. The proposed underwriter’s communication of the 14 would apply to some transactions rule change states a duty of the time of formal award before executing done on the first day of trading. Under underwriter to communicate this trades and reporting them to the those exceptions: (i) Dealers that are information ‘‘as promptly as possible’’ transaction reporting system. However, members of a syndicate or selling and ‘‘in a manner reasonably designed dealers outside the underwriting group group 7 that effect trades in a new issue to reach all market participants that may also may have pending orders in an at the list offering price may report trade the new issue’’ and also states a issue and need to know the time of trades by the end of the first day of firm deadline for this to be done, in any trading; and (ii) dealers that are not syndicate or selling group members and 11 The proposed rule change thus states a 8 See ‘‘Real-Time Transaction Reporting: Notice of deadline similar to the one that exists currently in Filing of Proposed Rule Change to Rules G–14 and the rule that requires communication of information G–34 are meant to include placement agents as well G–12(f),’’ MSRB Notice 2004–13, dated June 1, to be made on ‘‘initial trade date.’’ The proposed as dealers that purchase securities from the issuer 2004, on http://www.msrb.org. rule change phrases the deadline in terms of ‘‘first as principal. If there is an underwriting syndicate, 9 See MSRB Rule G–12 Interpretive Letter, execution of a transaction by the underwriter’’ the lead manager is considered to be the ‘‘Confirmation: Mailing of WAII confirmation,’’ rather than by use of the term ‘‘first date that underwriter for purposes of Rule G–34. See, e.g., dated April 30, 1982, on http://www.msrb.org. allocations are made.’’ This avoids the ambiguity of MSRB Rule G–34(a)(ii) and G–34(a)(iii). 10 Although the time of formal award represents the term ‘‘allocations,’’ which are sometimes 6 The term ‘‘allocations’’ used in the current the earliest time that a trade in a new issue can be conditional on the formal award of an issue. language of Rule G–34 refers to the ‘‘final’’ executed, the underwriter is not required by MSRB 12 As discussed, underwriters should be aware allocations by the underwriter, which are rules to execute trades at that time. In cases in that, when other dealers have pending orders in a confirmable transactions. which a formal award occurs after the end of the new issue, those dealers will be waiting for the 7 References to ‘‘syndicate and selling group business day, or at night, for example, the underwriter’s announcement prior to executing members’’ in this context are meant to include underwriter might choose to execute its first their own transactions. Therefore, it is important managers of syndicates as well as sole underwriters transactions on the next business day, just as is that information on the time of formal award and or placement agents in non-syndicated offerings. permitted under the current language of Rule G–34. CUSIP numbers not be delayed unreasonably.

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formal award.13 Under the existing number assignment.15 For negotiated burden on competition among dealers in provisions of Rule G–34, dealers that are issues, the proposed rule change that it applies equally to all dealers in not in the underwriting group do not advances the existing deadline that municipal securities. assignments be made by the ‘‘business receive a communication from the C. Self-Regulatory Organization’s day on which the BPA is signed’’ to a underwriter notifying them of the Statement on Comments on the requirement that numbers be assigned ‘‘initial trade date’’ of the issue. The Proposed Rule Change Received From ‘‘by the time of formal award.’’ For proposed rule change will help ensure Members, Participants, or Others that these dealers receive the necessary competitive issues, the proposed rule information to execute trades by change alters the deadline from ‘‘date of Comments in the proposed rule requiring underwriters to disseminate award’’ to ‘‘the first execution of a change were solicited in a notice dated 19 the information in ‘‘a manner transaction by the underwriter.’’ For June 18, 2004 (‘‘June 2004 Notice’’). reasonably designed to reach market various reasons CUSIP numbers are not The MSRB received two comment participants that may trade the issue.’’ 14 always pre-assigned to competitively letters. Comments were received from: bid issues.16 In a real-time environment, The Bond Market Association The proposed rule change does not 20 it may not be possible for the winning (‘‘BMA’’). specify the particular method that must underwriter to have the CUSIP numbers Standard and Poor’s CUSIP Service be used to disseminate information ‘‘in 21 assigned by the time of formal award Bureau (‘‘CUSIP’’). a manner reasonably designed to reach under these circumstances. During BMA indicated general support for market participants that may trade the normal business hours, the underwriter the proposed rule change. BMA ‘‘fully issue.’’ For large issues that are widely in these situations generally can obtain support[s] dissemination of CUSIP sold in the market, it effectively would CUSIP numbers within an hour or two, numbers to the current information require dissemination of the information at which time notifications would be service providers as soon as practicable on an electronic platform that provides made and trade executions in the issue after they are known and in no case later real-time bond information and that is could begin. than the ‘time of first execution.’’’ generally accessible to dealers. Unlike CUSIP, while neutral, suggested the current provision in Rule G–34, the 2. Statutory Basis industry practices that would help requirement to disseminate information The MSRB believes that the proposed implement the proposed rule change applies to sole underwriters as well as rule change is consistent with section with respect to CUSIP number to syndicate managers. However, the 15B(b)(2)(C) of the Act,17 which requires availability. CUSIP recommended proposed rule change also contemplates that the rules of the MSRB shall ‘‘be applying as early as possible for CUSIP that the method of dissemination be designed to prevent fraudulent and number assignment and states that it ‘‘is appropriate to the type of offering. For manipulative acts and practices, to not limited in any way from assigning example, in the case of a limited promote just and equitable principles of CUSIP numbers prior to the sale of a placement or a small offering where the trade, to foster cooperation and new municipal offering so long as the underwriter knows all of the parties that coordination with persons engaged in [CUSIP Service Bureau] is properly will have trades on the first day of regulating, clearing, settling, processing notified and a preliminary official trading, notification to those parties information with respect to, and statement or similar offering document would be sufficient to satisfy the rule facilitating transactions in municipal is provided.’’ To expedite assignment of and further dissemination of the securities, to remove impediments to CUSIP numbers, CUSIP recommended information would not be necessary. and perfect the mechanism of a free and that underwriters submit requests for As discussed below, industry open market in municipal securities, CUSIP numbers electronically rather commentators stated that existing and, in general, to protect investors and than by fax and stated that it is information service providers are able to the public interest. * * *’’ 18 considering enhancements to its accommodate the dissemination of The MSRB has a long-standing policy internet-based application process to information necessary under the rule. to increase price transparency in the further expedite the assignment and Thus the proposed rule change does not municipal securities market, with the availability of CUSIP numbers. specify or suggest particular electronic ultimate goal of disseminating pricing data on a contemporaneous, real-time, Dissemination of Information by platforms by which a required Underwriters dissemination should be made. basis. The proposed rule change will facilitate the processing of transactions In the June 2004 Notice the MSRB Timing for CUSIP Number Assignment in new issue municipal securities so specifically requested comment on that such transactions can be reported to whether electronic venues exist in the A final provision of the proposed rule the MSRB in real-time and prices of marketplace by which underwriters change is a modification in the such transactions can be disseminated could make announcements that underwriter’s deadline for CUSIP on a contemporaneous basis. provide reasonable access to information about a new issue to all 13 Although trade executions and trade B. Self-Regulatory Organization’s Statement on Burden on Competition dealers. Such a venue would be confirmations are not permitted prior to the time of necessary to communicate CUSIP formal award, dealers often solicit orders, accept The MSRB does not believe that the orders and (after final pricing decisions are made) conditionally allocate to orders, even though the proposed rule change will result in any 19 ‘‘Notice Requesting Comment on Draft formal award has not yet occurred. The proposed Amendments to Rule G–34 to Facilitate Real-Time rule change is designed to facilitate the flow of 15 The proposed rule change also makes technical Transaction Reporting and Explaining Time of information so that these dealers will know the changes for purposes of clarity. Trade for Reporting New Issue Trades,’’ MSRB earliest time that these ‘‘conditional trading 16 The proposed rule change does not affect Notice 2004–18, dated June 18, 2004, on http:// commitments’’ can be executed in a new issue and existing provisions in Rule G–34 that require a www.msrb.org. will have the information necessary to ensure that dealer acting as financial advisor in connection 20 Letter to Justin R. Pica, MSRB, from Leslie M. trade reports can be made in a timely manner after with a competitive sale to ensure that CUSIP Norwood, The Bond Market Association, dated execution. numbers are pre-assigned to the issue. Not all August 18, 2004. 14 Accordingly, the dissemination requirement in financial advisors, however, are dealers. 21 Letter to Justin R. Pica, MSRB, from Harry J. the proposed rule change applies to sole 17 15 U.S.C. 78o–4(b)(2)(C). Lopez and Gerard Faulkner, Standard and Poor’s underwriters as well as to syndicate managers. 18 Id. CUSIP Service Bureau, dated August 17, 2004.

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numbers, identifying information and IV. Solicitation Of Comments SECURITIES AND EXCHANGE the time of formal award to dealers Interested persons are invited to COMMISSION outside of the syndicate and selling submit written data, views, and [Release No. 34–50749; File No. SR–NASD– group that may have ‘‘conditional arguments concerning the foregoing, 2004–022] trading commitments’’ in the new issue. including whether the proposed rule The MSRB stated in the June 2004 change is consistent with the Act. Self-Regulatory Organizations; Notice Notice that, if such a venue did not Comments may be submitted by any of of Filing of Proposed Rule Change by currently exist, or if there would be the following methods: the National Association of Securities problems in making effective Dealers, Inc. Relating to the Corporate announcements through existing Electronic Comments Financing Rule and Shelf Offerings of venues, the MSRB could offer to provide • Use the Commission’s Internet Securities such a special-purpose solution. comment form (http://www.sec.gov/ The BMA ‘‘strongly supports the use rules/sro.shtml); or November 29, 2004. of current information service providers • Send an e-mail to rule- Pursuant to Section 19(b)(1) of the to carry this information, and feels that [email protected]. Please include File Securities Exchange Act of 1934 additional systems, emails, newsgroup Number SR–MSRB–2004–08 on the (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 postings, and processes should not be subject line. notice is hereby given that on February implemented.’’ In its comment letter, 4, 2004, the National Association of the BMA stated that it has set up a ‘‘G– Paper Comments Securities Dealers, Inc. (‘‘NASD’’) filed 34 Task Force’’ to work with current • Send paper comments in triplicate with the Securities and Exchange information service providers ‘‘to: (a) to Jonathan G. Katz, Secretary, Commission (‘‘SEC’’ or ‘‘Commission’’) Increase awareness about the need for Securities and Exchange Commission, the proposed rule change as described quick and accurate dissemination of 450 Fifth Street, NW., Washington, DC in Items I, II, and III below, which Items final CUSIP numbers, the ‘‘time of 20549–0609. have been prepared by NASD. On May formal award’’ and the ‘‘time of first All submissions should refer to File 4, 2004, NASD filed Amendment No. 1 execution,’’ and (b) to include new Number SR–MSRB–2004–08. This file to its proposed rule change, which fields in their systems, if necessary, to number should be included on the replaced and superseded the original accommodate the dissemination of this subject line if e-mail is used. To help the rule filing in its entirety. On July 16, information from underwriters to Commission process and review your 2004, NASD filed Amendment No. 2 to market participants on a real-time comments more efficiently, please use its proposed rule change.3 On October basis.’’ CUSIP stated that it would only one method. The Commission will 12, 2004, NASD filed Amendment No. ‘‘consider offering a new service post all comments on the Commission’s 3 to its proposed rule change.4 The whereby [CUSIP Service Bureau] Internet Web site (http://www.sec.gov/ Commission is publishing this notice to communicates newly assigned rules/sro.shtml). Copies of the solicit comments on the proposed rule municipal CUSIP numbers to all submission, all subsequent change, as amended, from interested syndicate members and dealers outside amendments, all written statements persons. of the syndicate group.’’ with respect to the proposed rule I. Self-Regulatory Organization’s Based on the comments received change that are filed with the Statement of the Terms of Substance of indicating that existing industry systems Commission, and all written the Proposed Rule Change can provide broad real-time communications relating to the dissemination of information to proposed rule change between the NASD is proposing to amend NASD industry members, the MSRB has Commission and any person, other than Rules 2710, 2810, IM–2440, and decided not to offer to provide a special- those that may be withheld from the Schedule A to the NASD By-Laws to purpose solution for making public in accordance with the address the filing requirements and the announcements to market participants. provisions of 5 U.S.C. 552, will be regulation of public offerings of However, the MSRB will review the available for inspection and copying in securities registered with the operation of industry systems for the Commission’s Public Reference Commission and offered by members disseminating information and will Room. Copies of such filing also will be pursuant to SEC Rule 415 of Regulation readdress this issue if necessary in the available for inspection and copying at C under the Securities Act of 1933 future. the MSRB’s offices. All comments (‘‘SEC Rule 415’’) (‘‘shelf offerings’’). III. Date of Effectiveness of the received will be posted without change; Below is the text of the proposed rule Proposed Rule Change and Timing for the Commission does not edit personal change. Proposed new language is in Commission Action identifying information from italics; proposed deletions are in submissions. You should submit only [brackets]. Within 35 days of the date of information that you wish to make Schedule A to NASD By-Laws publication of this notice in the Federal available publicly. All submissions Register or within such longer period (i) should refer to File Number SR–MSRB– Assessments and fees pursuant to the as the Commission may designate up to 2004–08 and should be submitted on or provisions of Article VI of the By-Laws 90 days of such date if it finds such before December 28, 2004. of NASD shall be determined on the longer period to be appropriate and following basis. publishes its reasons for so finding or For the Commission, by the Division of Sections 1 through 6—No change. (ii) as to which the self-regulatory Market Regulation, pursuant to delegated authority.22 organization consents, the Commission 1 15 U.S.C. 78s(b)(1). will: Jill M. Peterson, 2 17 CFR 240.19b–4. A. By order approve such proposed Assistant Secretary. 3 Amendment No. 2 made several technical rule change, or [FR Doc. E4–3514 Filed 12–6–04; 8:45 am] corrections and modified the Market Transactions Exception contained in the proposed rule change. B. Institute proceedings to determine BILLING CODE 8010–01–P 4 Amendment No. 3 corrected clerical and whether the proposed rule change typographical errors contained in Amendment No. should be disapproved. 22 17 CFR 200.30–3(a)(12). 2.

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Section 7—Fees for Filing Documents not reasonably related to the current consulting capacity to the issuer related Pursuant to the Corporate Financing market price of the security or to charge to the offering, but not the preparation Rule a commission which is not reasonable. of an appraisal in a savings and loan (a) There shall be a fee imposed for (a) through (b) No change. conversion or a bank offering or the preparation of a fairness opinion the initial filing of [initial] documents (c) Transactions to Which the Policy is pursuant to SEC Rule 13e–3. and information relating to any offering Applicable filed with NASD pursuant to the (6) Underwriter and Related Persons Corporate Financing Rule equal to $500 The Policy applies to all securities Consists of underwriter’s counsel, plus .01% of the proposed maximum handled in the over-the-counter market, financial consultants and advisors, aggregate offering price or other whether oil royalties or any other finders, any participating member, and applicable value of all securities security, in the following types of any other persons [related to any registered on an SEC registration transactions: participating member] that receive any statement or included on any other type (1) through (5) No change. item of value that would be considered of offering document (where not filed (6) Transactions in which a member underwriting compensation. with the SEC), but shall not exceed sells securities from an offering $30,500. The amount of filing fee may registered with the SEC pursuant to SEC (7) Listed Securities be rounded to the nearest dollar. Rule 415 that comply with the exemption from filing with NASD under Securities meeting the listing (b) There shall be an additional fee standards to trade on the national imposed for the filing of any Rule 2710(b)(10)(B) for Market Transactions. securities exchanges identified in SEC amendment or other change to the Rule 146, markets registered with the documents and information initially (d) Transactions to Which the Policy is SEC under Sections 6 or 11A of the filed with NASD pursuant to the Not Applicable [Exchange] Act, and any offshore market Corporate Financing Rule equal to .01% The Mark-Up Policy is not applicable that is a ‘‘designated offshore securities of the net increase in the maximum market’’ under Rule 902(b) of SEC aggregate offering price or other to the sale of securities where a prospectus or offering circular is Regulation S. applicable value of all securities (8) through (9) No Change. registered on an SEC registration required to be delivered and the statement, or any related Rule 462(b) securities are sold at the specific public (10) Required Filing Date offering price[.], including any offering registration statement, or reflected on The required filing date shall be the or transaction subject to the any Rule 430A prospectus, or included dates provided in subparagraph (b)(4), compensation limitations of Rule 2710 on any other type of offering document. and for a public offering exempt from or Rule 2810. However, the aggregate of all filing fees filing under subparagraph (b)(7), the paid in connection with an SEC * * * * * required filing date for purposes of registration statement or other type of 2710. Corporate Financing Rule— subparagraphs (d) and (g) shall be the offering document shall not exceed Underwriting Terms and Arrangements date the public offering would have $30,500. been [be] required to be filed with [the] * * * * * (a) Definitions NASD but for the exemption. For purposes of this Rule, the IM–2440. Mark-Up Policy (11) Securities Act following terms shall have the meanings The question of fair mark-ups or stated below. The definitions in Rule The Securities Act of 1933, as spreads is one which has been raised 2720 are incorporated herein by amended. from the earliest days of the reference. (12) Shelf Offering Association. No definitive answer can (1) through (2) No Change. be given and no interpretation can be Any offering of securities registered all-inclusive for the obvious reason that (3) Offering Proceeds with the SEC and offered pursuant to what might be considered fair in one The maximum [P]public offering SEC Rule 415, under the Securities Act. transaction could be unfair in another price of all securities to be offered or transaction because of different that are sold in a public offering [to the (13) Takedown circumstances. In 1943, the public], not including securities subject In connection with a shelf offering, Association’s Board adopted what has to any overallotment option, securities the securities purchased by a member in become known as the ‘‘5% Policy’’ to be to be received by the underwriter and a principal transaction or the securities applied to transactions executed for related persons, or securities underlying sold by a member in an agency customers. It was based upon studies other securities. transaction. demonstrating that the large majority of (4) No Change. customer transactions were effected at a (b) Filing Requirements (5) Participation or Participating in a mark-up of 5% or less. The Policy has Public Offering (1) through (3) No change been reviewed by the Board of Governors on numerous occasions and Participation in the preparation of the (4) Requirement for Filing each time the Board has reaffirmed the offering or other documents, (A) Unless filed by the issuer, the philosophy expressed in 1943. Pursuant participation in the distribution of the managing underwriter, or another thereto, and in accordance with Article offering on an underwritten, non- member, a member that anticipates VII, Section 1(a)(ii) of the By-Laws, the underwritten, principal, agency or any participating in a public offering of Board has adopted the following other basis, participation in a shelf securities subject to this Rule shall file interpretation under Rule 2440. takedown that does not satisfy the with NASD the documents and It shall be deemed a violation of Rule requirements of the market transactions information with respect to the offering 2110 and Rule 2440 for a member to exemption; furnishing of customer and/ specified in subparagraphs (5) and (6) enter into any transaction with a or broker lists for solicitation, or below: customer in any security at any price participation in any advisory or (i) No Change.

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(ii) if not filed with or submitted to (A) securities offered by a corporate, (9) Offerings Required To Be Filed any regulatory authority, at least fifteen foreign government or foreign Documents and information relating business days prior to the anticipated government agency issuer which has to all other public offerings including, date on which offers will commence[.]; unsecured non-convertible investment but not limited to, the following must be or grade rated debt with a term of issue of filed with NASD for review: (iii) in the case of a shelf offering, at least four (4) years, or unsecured non- (A) through (H) No change. before the member sells securities in any convertible investment grade rated (I) any exchange offer, merger and takedown required to be filed. preferred securities, [rated by a (B) No [sales of securities subject to acquisition transaction, or other similar nationally recognized statistical rating corporate reorganization involving an this Rule shall commence] member shall organization in one of its four (4) commence selling in any offering issuance of securities that results in the highest generic rating categories,] except direct or indirect public ownership of required to be filed by this Rule, Rule that the initial public offering of the 2720 or Rule 2810 unless: the member; [and] equity of an issuer is required to be (J) any offerings of a similar nature (i) No Change. filed[;]. (ii) NASD has provided an opinion to that are not exempt under subparagraph (B) investment grade rated non- (7) or (8) above[.]; and the member or that covers the member convertible debt securities and stating that it has no objections to the (K) shelf offerings pursuant to investment grade rated non-convertible paragraph (10) below, and any shelf proposed underwriting and other terms preferred securities [rated by a and arrangements[or an opinion that the offering that is the initial public offering nationally recognized statistical rating of the equity of an issuer. proposed underwriting and other terms organization in one of its four (4) and arrangements are unfair and highest generic rating categories;]. (10) Shelf Offerings. unreasonable]. If NASD’s opinion states [(C) offerings of securities:] (A) Filing Requirement: a member that the proposed underwriting and [(i) registered with the Commission on that is required under subparagraph (4) other terms and arrangements are unfair registration statement Forms S–3 or F– above to file with NASD documents and and unreasonable, the member may file 3 pursuant to the standards for those information required in subparagraphs modifications to the proposed Forms prior to October 21, 1992 and (5) and (6) shall make an ‘‘Initial underwriting and other terms and offered pursuant to SEC Rule 415 Member Filing’’ or, if another member arrangements for further review. adopted under the Securities Act of has made the Initial Member Filing, a (C) Any member acting as a managing 1933, as amended; or] ‘‘Subsequent Filing,’’ and shall receive a underwriter or in a similar capacity that [(ii) of a foreign private issuer no-objections opinion pursuant to such has been informed of an opinion by incorporated or organized under the filing prior to its participation in the NASD[,or a determination by the laws of Canada or any Canadian shelf offering. appropriate standing committee of the province or territory, and is registered (i) Issuer Filing: Documents and Board of Governors,] that the proposed with the Commission on Form F–10 information that are required to be filed underwriting terms and arrangements of pursuant to the standards for that Form by members under subparagraphs (5) a proposed offering are unfair or approved in Securities Act Release No. and (6) may be filed by the issuer. The unreasonable, and the proposed terms 6902 (June 21, 1991) and offered fees specified in Section 6 of Schedule and arrangements have not been pursuant to Canadian shelf prospectus A to the NASD By-Laws will be required modified to conform to the standards of offering procedures;] fairness and reasonableness, shall notify [(D)] (C) securities offered pursuant to in connection with such a filing; all other members proposing to a redemption standby ‘‘firm (ii) Initial Member Filing: Unless participate in the offering of that commitment’’ underwriting made by another member, prior to opinion or determination at a time arrangement registered with the participating in a shelf offering a sufficiently prior to the effective date of Commission on Forms S–3, F–3 or F–10 member shall make an Initial Member the offering or the commencement of (only with respect to Canadian Filing of the documents and information sales so the other members will have an issuers)[;]. required under subparagraphs (5) and opportunity as a result of specific notice [(E)] (D) financing instrument-backed (6) and pay the filing fee specified in to comply with their obligation not to securities which are investment grade Section 6 of Schedule A to the NASD participate in any way in the rated [by a nationally recognized By-Laws prior to participating in a distribution of a public offering statistical rating organization in one of takedown. Documents and Information containing arrangements, terms and its four (4) highest generic rating previously provided to NASD in an conditions that are unfair or categories]; and Issuer Filing may be incorporated in the unreasonable. [(F)] (E) exchange offers of securities Initial Member Filing and no additional (5) through (6) No Change. where: filing fees will be required if the entire (i) No change. filing fee has been paid in connection (7) Offerings Exempt from Filing (ii) the company issuing securities with an Issuer Filing; Notwithstanding the provisions of qualifies to register securities with the (iii) Subsequent Member Filing: if the subparagraph (1) above, documents and Commission on registration statement Initial Member Filing has been made in information related to the following Forms S–3, F–3, or F–10, pursuant to connection with a shelf offering, a public offerings need not be filed with the standards for those Forms as set member that has not already received a NASD for review, unless subject to the forth in [subparagraphs (C)(i) and (ii) of ‘‘no-objections’’ opinion under provisions of Rule 2720. However, it this paragraph; and] subparagraph 10(D) subparagraph (b)(4)(B) shall make a shall be deemed a violation of this Rule below; and Subsequent Member Filing of the or Rule 2810, for a member to [(G)] (F) offerings of securities by a documents and information specified in participate in any way in such public church or other charitable institution subparagraphs (5) and (6) prior to its offerings if the underwriting or other that is exempt from SEC registration participation in a takedown. arrangements in connection with the pursuant to Section 3(a)(4) of the Information previously submitted in an offering are not in compliance with this Securities Act. Issuer Filing or Initial Member Filing Rule or Rule 2810, as applicable: (8) No change. may be incorporated into the

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Subsequent Member Filing and no (C) Seasoned Issuer Exemption: received or to be received in connection additional filing fees will be due if the notwithstanding subparagraphs (4) and with the sale of the securities; entire fee due under Schedule A to the (10)(A) above, documents and (iii) in a principal transaction when NASD By-Laws has already been paid in information related to the following the discount from the public offering connection with an Issuer Filing or shelf offerings need not be filed with price is not specified in an agreement or Initial Member Filing; NASD for review, unless the shelf the transaction is not governed by an (iv) ‘‘Life of Shelf’’ Clearance: A offering is subject to the provisions of agreement, the difference between the member that has received a no- Rule 2720: purchase price of the security and the objections opinion in connection with a (i) offerings by a company that has sale price of the security. If there is a shelf registered offering shall not be been subject to the reporting bona fide independent market for the required to make a Subsequent Member requirements of Section 12 or 15(d) of security, or the security is an Actively- Filing in order to participate in future the Act for at least 36 calendar months, Traded Security as defined in Rule 2720 takedowns provided that: is current in its reporting obligations, and SEC Regulation M, respectively, the a. the shelf registration statement and at the time of the takedown, either: discount or commission may be discloses a maximum amount of a. has registered the offering with the calculated as the difference between the underwriting compensation that will not Commission on registration statement purchase price and the: be exceeded by participating members Form S–3 and the aggregate market a. ‘‘prevailing market price’’ in the in takedowns; and value of the company’s voting stock principal market for the security at the b. there is no material change to the held by non-affiliates is at least $150 time of purchase, as calculated by information provided in the filing on million or, alternatively, at least $100 reference to IM–2440, the Mark-Up which NASD relied in issuing the no- million and the stock has had an annual Policy; or objections opinion. trading volume of at least three million b. initial resale price of the security, (B) Market Transactions Exemption: a shares; or so long as: member may participate in a takedown b. has registered the offering with the 1. the purchase price of the takedown of equity securities or convertible-to- Commission on registration statement is of at least $10 million but no more equity debt securities and be exempt Form F–3 and the aggregate market than $50 million of securities and at from the filing requirement in value worldwide of the company’s least 50% of the securities are sold at subparagraphs (4) and (10)(A) above if voting stock held by non-affiliates is the the initial resale price or at lower prices; the following conditions are met: equivalent of at least $300 million; or (i) the shelf offering is not the initial (ii) offerings registered with the 2. the purchase price of the takedown public offering of the issuer’s equity Commission on Form F–10 by a foreign exceeds $50 million of securities and at securities, and does not occur within 90 private issuer incorporated or organized least 25% of the securities are sold at days of the issuer’s initial public under the laws of Canada or any the initial resale price or at lower prices. offering; Canadian province or territory and (3) Items of Value (ii) the security is listed on The offered pursuant to Canadian reporting Nasdaq Stock Market or a national requirements for at least 36 calendar (A) For purposes of determining the securities exchange; months and at the time of the takedown, amount of underwriting compensation (iii) agency and principal transactions is current in its reporting obligations received or to be received by the are unsolicited and do not exceed the and the aggregate market value of the underwriter and related persons greater of: company’s outstanding equity is at least pursuant to subparagraph (c)(2) above, a. 2% of the average daily trading (CN) $360 million. the following items and all other items volume (ADTV) on the dates of the (10) and (11) renumbered as (11) and of value received or to be received by transactions, calculated in compliance (12). the underwriter and related persons in with SEC Regulation M, or connection with or related to the (c) Underwriting Compensation and b. 10,000 shares, or securities distribution of the public offering, as Arrangements convertible or exercisable into such determined pursuant to paragraph (d) number of shares; (1) No change. below shall be included: (iv) the participating member has not (i) through (iv) No change. (2) Amount of Underwriting entered into any underwriting, (v) wholesaler’s fees[;], whether in the Compensation distribution, equity line or other form of cash, securities or any other agreement with the issuer or any selling (A) through (E) No change. item of value; securityholder with respect to the sale of (F) For purposes of determining the (vi) through (xiii) No Change. the securities offered; amount of underwriting compensation (B) No Change. (v) the participating member does not in a shelf offering, the discount or (d) Determination of Whether Items of receive compensation (including the commission paid to participating Value Are Included In Underwriting mark-up, mark-down, or commission) members shall be aggregated with all Compensation that exceeds the amount permitted other items of value received or to be under NASD IM–2440, the Mark-Up received in connection with the (1) Pre-Offering Compensation Policy; takedown and shall consist of: (A) All items of value received and all (vi) the participating member has not (i) in a transaction governed by an arrangements entered into for the future acquired any item of value in agreement, the discount from the public receipt of an item of value by the connection with its participation in the offering price, or the discount from a underwriter and related persons during shelf offering (excluding a mark-up, reasonable measure of the market price, the period commencing 180 days mark-down, or commission); and or the commission specified by the immediately preceding the required (vii) the participating member is not agreement that governs the transaction; filing date of the registration statement an affiliate of the issuer and does not (ii) in an agency transaction not or similar document pursuant to have a conflict of interest with the issuer governed by an agreement, the amount subparagraph (b)(4) above until the date under Rule 2720. of the actual commission that is of effectiveness or commencement of

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sales of the public offering will be (g) Lock-Up Restriction on Securities (B) an offering of securities exempt considered to be underwriting (1) Lock-Up Restriction from registration with the Commission compensation in connection with the under Section 3(a)(4) of the Securities public offering. For a shelf offering that In any public equity offering, other Act [of 1933]; has been declared effective and for than a public equity offering by an (C) through (D) No Change. which sales have commenced, this issuer that can meet the requirements in (i) through (j) No change. period will be the 180 days immediately subparagraphs (b)[(7)](10)(C)(i) or (ii) * * * * * preceding the first takedown in which any common or preferred stock, options, 2810. Direct Participation Programs the member participates following the warrants, and other equity securities of receipt of the item of value. the issuer, including debt securities (a) through (b) No change. (2) through (5) No change. convertible to or exchangeable for (c) Filing Requirements: Coordination equity securities of the issuer, that are with Rule 2710. (e) Valuation of Non-Cash unregistered and acquired by an All offerings of securities included Compensation underwriter and related person(s) within the scope of this Rule shall be during 180 days prior to the required subject to the provisions of Rule 2710, For purposes of determining the value filing date, or acquired after the required and documents and filing fees relating to be assigned to securities received as filing date of the registration statement to such offerings shall be filed with underwriting compensation, the and deemed to be underwriting NASD pursuant to the provisions of that following criteria and procedures shall compensation by NASD, and securities Rule and Section 6 of Schedule A to the be applied. excluded from underwriting NASD By-Laws. (1) Limitation on Securities Received compensation pursuant to subparagraph (c) renumbered as (d). Upon Exercise or Conversion of Another (d)(5) above, shall not be sold during the (d) renumbered as (e). Security offering, or sold, transferred, assigned, * * * * * pledged, or hypothecated, or be the II. Self-Regulatory Organization’s Neither [An] underwriter [and] nor subject of any hedging, short sale, Statement of the Purpose of, and related person may [not] receive a derivative, put, or call transaction that Statutory Basis for, the Proposed Rule security (including securities in a unit), would result in the effective economic Change a warrant for a security, or a security disposition of the securities by any convertible into another security as person for a period of 180 days In its filing with the Commission, underwriting compensation in immediately following the date of NASD included statements concerning connection with a public offering effectiveness or commencement of sales the purpose of and basis for the unless: of the public offering, except as proposed rule change and discussed any (A) through (B) No Change. provided in subparagraph (g)(2) below. comments it received on the proposed (2) through (3) No Change. The ‘‘effective date of the offering’’ for rule change. The text of these statements purposes of a shelf-registered offering may be examined at the places specified (4) Valuation Discount For Securities shall be the day following the last in Item IV below. NASD has prepared With a Longer Resale Restriction takedown for which the participating summaries, set forth in Sections A, B, A lower value equal to 10% of the member received securities as and C below, of the most significant calculated value shall be assigned compensation. aspects of such statements. [deducted] for each 180-day period that (2) Exceptions to Lock-Up Restriction A. Self-Regulatory Organization’s the securities or underlying securities Statement of the Purpose of, and are restricted from sale or other Notwithstanding subparagraph (g)(1) Statutory Basis for, the Proposed Rule disposition beyond the 180-day period above, the following shall not be Change of the lock-up restriction required by prohibited: subparagraph (g)(1) below. The transfers (A) the [transfer] disposition of any 1. Purpose permitted during the lock-up restriction security: NASD is proposing to amend NASD by subparagraphs (g)(2)(A)(iii)–(iv) are (i) No Change. Rules 2710, 2810, IM–2440, and not available for such securities. (ii) to any member participating in the Schedule A to the NASD By-Laws to offering and the officers or partners address the filing requirements and the (5) Valuation of Items of Value Acquired thereof, if all of the securities [so regulation of public offerings of in Connection with a Fair Price transferred] remain subject to the lock- securities registered with the Derivative or Debt Transaction up restriction in subparagraph (g)(1) Commission and offered by members above for the remainder of the time Any debt or derivative transaction pursuant to SEC Rule 415 (‘‘shelf period; acquired or entered into at a ‘‘fair price’’ offerings’’). NASD Rules 2710, 2720 and (iii) if the aggregate amount of as defined in subsection (a)(9) and any 2810 (collectively, the ‘‘Corporate securities of the issuer held by the item of value received in or receivable Financing Rules’’) require NASD underwriter [or] and related person do in the settlement, exercise or other members that anticipate participating in not exceed 1% of the securities being terms of such debt or derivative a public offering of securities, including offered; transaction shall not have a shelf offerings, to make a filing with (iv) through (viii) No Change. compensation value for purposes of NASD’s Corporate Financing (B) No Change. determining underwriting Department (‘‘Department’’). The compensation. If the actual price for the (h) Proceeds Directed to a Member Department reviews the proposed debt or derivative security is not a fair (1) through (2) No Change. underwriting terms and other required price, compensation will be calculated information submitted by members.5 pursuant to this subsection (e) or based (3) Exception From Compliance on the difference between the fair price 5 NASD Rule 2710 regulates the underwriting The provisions of subparagraphs terms and arrangements of most public offerings of and the actual price. (h)(1) and (2) shall not apply to: securities sold through NASD members. The (f) No Change. (A) No Change. Continued

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Members are required to receive the participation in a public offering. The discounts, commissions or other terms Department’s opinion of ‘‘no- Notice also states that any member who and arrangements.8 objections’’ to the offering terms prior to is named as a potential distribution • The Department’s review processes participating in the offering. participant in the registration statement could delay the offering, thus affecting In September 2001, NASD published or who participates in any transaction the registrant’s ability to take advantage Notice to Members 01–59 requesting that takes securities off the shelf is of market opportunities that shelf comment on proposed amendments to responsible for ensuring that a timely registration is designed to provide. This the Corporate Financing Rules to filing is made with the Department. can occur when members do not modernize and improve the regulation Notice to Members 01–59 reiterated this promptly file shelf-registered offerings of shelf offerings. NASD received six position: ‘‘Accordingly, NASD when they anticipate they will comment letters that generally Regulation considers shelf offerings to participate in a takedown, when supported the proposal and the need to be public offerings within the scope of information required by the rules is not amend the rules.6 However, several the Corporate Financing Rules, and readily available, or due to mistakes in commenters also were concerned that members that take securities off a shelf the filing process or transmission of the new approach, with its emphasis on and sell them to the public must file filing fees. ‘‘Notice Filings’’ after each takedown off information about the offering with the The proposed rule change addresses the shelf, might prove more burdensome Department.’’ these issues by clearly delineating the and expensive than the current rules. While these Notices indicate that filing responsibility for members that The Corporate Financing Committee shelf offerings are public offerings that participate in shelf offerings and also considered the proposal at several must be filed with the Department, the providing a streamlined, more meetings. At its May 2002 meeting, the requirement to file as currently drafted automated process for all filers, Committee also expressed concern that also undermines some of the flexibility including issuers. In addition, the the Notice Filing approach may not be intended by the shelf offering process proposed rule change provides a as efficient and yield the benefits it was and has created some practical issues specific filing exemption for members designed to provide. and uncertainties for members that sell that engage in occasional unsolicited In response to the comments received, shelf-registered securities: takedown transactions, and thus NASD staff revised the proposal. In the • Members have been unclear at members would not have to file when proposed rule change, NASD has times whether the sale by a member of they participate in shelf takedowns that retained beneficial aspects of the a small amount of shelf-registered meet the criteria in the exemption. The original proposal (e.g., the new securities offered by an issuer or a proposed rule change is intended to calculation methodologies for selling security holder triggers a filing provide clear guidance to members with determining underwriting obligation, and if so, at what point regard to their filing obligations. compensation, the Market Transactions should the member make a filing. The proposed rule change also Exception), and eliminated those other Members have questioned whether the addresses the determination of aspects that raised legitimate concerns execution of unsolicited transactions underwriting compensation in shelf (e.g., Notice Filings, special filing would constitute ‘‘participation in a offerings. From time to time members requirements for Thinly Traded Issuers). public offering’’ for purposes of the have requested guidance on the In addition, NASD staff modified and Corporate Financing Rules.7 appropriate calculation of underwriting clarified the filing requirements. • When several members acting compensation in shelf takedown a. Background. When a member independently sell securities, it may be transactions. The calculation anticipates participating in a shelf unclear which member must make the methodology to apply to a particular offering, the Corporate Financing Rules requisite filing with the Department. takedown transaction can vary because of the many kinds of transactions in generally require the member to file the • Many shelf offerings are initially which shelf-registered securities are shelf offering with the Department. filed with the SEC by issuers before they distributed. For example, shelf Many shelf offerings are not enter into underwriting agreements with takedowns can be principal or agency underwritten, however, and members members. Because the NASD filing transactions, may be sold to investors at have requested guidance in the past requirements are the responsibility of a fixed price or at a discount to the concerning their filing obligations in members rather than issuers, few issuers market price, or sold at prevailing shelf offerings. In 1988, NASD file the offering with the Department. market prices. Shelf takedowns may published Notice to Members 88–101 Those issuers that do file with the also be made pursuant to an (‘‘NtM 88–101’’) to clarify the filing Department often cannot identify, at the underwriting agreement or without any requirements that apply to shelf time of filing, the members that will be written agreement, and the agreements offerings. The Notice states that the engaged in sales, nor will they have may involve complex formulas, such as participation of a member in any information regarding underwriting offering of securities distributed those found in equity line transactions. pursuant to SEC Rule 415 constitutes In the proposed rule change, NASD 7 Rule 2710(b)(4)(A) requires a member that anticipates participating in a public offering of proposes alternative methods to underwriting terms and arrangements of Direct securities subject to the Rule to make a filing with Participation Program (DPP) offerings are regulated NASD. ‘‘Participation in a public offering’’ is 8 In addition, issuers may file shelf-registered by NASD Rule 2810. NASD Rule 2720 regulates defined in Rule 2710(a)(4) as ‘‘* * * participation offerings on behalf of selling securityholders, in public offerings when the securities offered are in the distribution of the offering on an anticipation of member participation in the sale of those of a member, the member’s parent company, underwritten, non-underwritten, or any other basis the registered securities. Because the timing and an affiliate of the member, or a company with ***.’’ Rule 2720 contains a definition of ‘‘public amount of securities sold off the shelf will be under which a member has a conflict of interest. offering’’ that is incorporated by reference in Rule the control of the securityholders, the issuer may 6 Comment letters were received from the 2710. That definition broadly defines the term as have little or no information regarding the selling Committee on Securities Regulation of the New ‘‘any primary or secondary distribution of securities arrangements between the securityholders and York State Bar Association, the Capital Markets made pursuant to a registration statement or members. In response to these uncertainties, Committee of the Securities Industry Association, offering circular * * * and all other securities NASD’s proposed rule change would provide clear- and from the law firms of Fried, Frank, Harris, distributions of any kind whatsoever * * *.’’ NASD cut filing responsibilities to all members or exempt Shriver & Jacobson, Simpson Thacher & Bartlett, does not define the term ‘‘distribution’’ and uses them from filing under the proposed market Sullivan and Cromwell, and Shearman and Sterling. this term in the general sense. transactions exception.

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calculate the discount or commission information contained in the initial the initial filing or that executes the received by members that participate in filing, generally less information will be underwriting agreements that were shelf offerings. The alternatives are required in a subsequent filing. In reviewed in connection with the filing. intended to take into account the addition, if an issuer makes a filing If the maximum amount of different ways members sell securities before the initial filing by a member, the compensation that any member will in shelf offerings and to recognize the information and documents filed by the receive for selling the securities offered effect of transaction size and whether issuer (‘‘issuer filing’’) would be by the issuer or selling securityholders the security has an actively traded incorporated into the member’s initial in takedowns off the shelf is disclosed market. filing, further reducing the filing in the registration statement or in an The proposed rule change would also obligation of the member. In keeping amendment or supplement to the make several conforming and clarifying with current practice, if the full filing registration statement, every member amendments to the Corporate Financing fee has already been paid by the issuer, covered by the no-objections opinion Rules. NASD proposes to amend Rule no filing fee would be required of the will be able to rely on the no-objections 2710 to clarify how to apply the review member making the initial filing. As opinion for ‘‘the life of the shelf,’’ period for underwriting compensation with other filings made under Rule subject to there being no material when shelf takedowns occur long after 2710, members would be required to file change to the terms and conditions of a shelf registration statement has been shelf offerings with the Department the Department’s review and declared effective, and to clarify the electronically through the COBRADesk clearance.12 application of the lock-up provisions in system. After it issues a no-objections shelf offerings. We also propose to Initial Member Filings: Under the opinion, the Department intends to post amend Rule 2810 so that DPP offerings proposed rule change, before a member on a screen in COBRADesk the name of that are registered pursuant to SEC Rule participates in a shelf offering subject to the issuer, the SEC Accession number of 415 qualify for the new regulatory a filing requirement, the member would the base prospectus in EDGAR, and the treatment of shelf offerings under Rule be required to review a COBRADesk identity of all members who have 2710. The proposed rule change also screen to see if an initial filing has received no-objections clearance with modifies NASD’s Mark-Up Policy in already been made on web COBRADesk. regard to takedowns off that shelf. IM–2440 to more specifically delineate If the initial filing has not already been NASD intends to require and maintain those shelf offerings that are subject to made, the member will be required to information identifying each member the Policy.9 make the initial filing with the that will participate in an offering in the b. Filing Process. Under the proposed Department and pay the filing fee based COBRA database. All registered users of rule change, the general filing on the aggregate value of the securities COBRAdesk will have access to the requirement for shelf offerings would be registered on the registration ‘‘cleared members’’ screen. the same as that for all other public statement.10 The Department will Subsequent Filings: A member that offerings, i.e., a member that anticipates review the filing and issue a no- was not cleared to participate in the participating in a shelf offering in any objections letter with regard to the initial member filing but that wants to capacity shall file required information member’s participation in the offering. If participate in a subsequent takedown with the Department, unless a filing the maximum amount of compensation would have to make a ‘‘subsequent exemption is available. Unlike the that the issuer or selling securityholders filing.’’ In that case, a member that current system, however, the will pay the member in connection with wants to participate in a shelf takedown information required in a filing would takedowns off the shelf is approved and first would check web COBRADesk to differ depending on whether a filing is disclosed in the registration statement see if the offering has been filed with an ‘‘initial filing’’ or a ‘‘subsequent or in an amendment or supplement to NASD. If the offering has been filed, the filing’’ of a shelf offering. Because the registration statement, the member member would check the ‘‘cleared members would be able to rely on will be able to rely on the no-objections members’’ screen to see if an initial opinion for ‘‘the life of the shelf,’’ as member filing has been made. If the 9 The proposed amendments to IM–2440, the long as there are no material changes initial member filing was made and one Mark-Up Policy, clarify that Rule 2710 will govern that would affect the Department’s or more members were issued a no- member compensation in all shelf takedowns with review and clearance.11 If more than one objections opinion, these members the exception of those that comply with the member has entered into an would be identified. If the member that requirements of the Market Transactions Exemption wants to participate in the takedown is (MTE). Members will not be required to file underwriting agreement at the time the takedowns that comply with the MTE, and member initial filing is made, the Department not in the ‘‘cleared members’’ screen, compensation in such takedowns will be subject to will issue a no-objections opinion that such member would have to make a the Mark-Up Policy instead of Rule 2710. These applies to every member disclosed in subsequent filing with regard to its clarifications are particularly significant in light of proposed takedown from the shelf the decision on November 14, 2003 by NASD’s National Adjudicatory Council (NAC) in the Matter 10 This is consistent with current procedures. registration. If, on the other hand, the of Department of Enforcement v. Walsh Manning Members from time to time request that they be able member has already received a ‘‘life of Securities, LLC et. al. (NASD Complaint No. to pay filing fees only with regard to the value of shelf’’ clearance, it would be listed on CAF000013), in which the NAC stated in dicta that securities the particular member takes off the shelf, the ‘‘cleared members’’ screen and no certain shelf offerings were not subject to Rule 2710 but that is not permitted under the current rules, and were instead subject to the Mark-Up Policy. and would require members and issuers to pay further filing would be required, unless Although the complaint alleged violations of the multiple filing fees per shelf offering, creating Mark-Up Policy, Walsh Manning’s participation in administrative problems and delaying takedowns. 12 For example, NASD would consider changes takedowns from a selling securityholder shelf In addition, if an issuer files documents and such as the following to be material: the receipt of offering would have triggered a filing requirement information with NASD, the filing fee paid by the additional items of value by the underwriter and under the proposed rule change. This is because, issuer would satisfy the member’s obligation to pay related persons that would be deemed underwriting among other things, Walsh Manning engaged in the filing fee. compensation and would require an amendment to solicited transactions and sold securities in an 11 Rule 2710 requires the disclosure of all the offering documents, a modification to amount that would have exceeded the parameters underwriting compensation in the prospectus. As compensation arrangements already reviewed and of the MTE. Therefore, Walsh Manning would have part of its review of a filing, NASD would require approved and the existence or development of a had to file the offering for review under Rule 2710 the maximum compensation to be received by potential conflict of interest that was not reviewed. if the proposed rule change had been in effect at members be disclosed before issuing an opinion of A subsequent filing would be required in these the time. no-objections regarding the offering. instances.

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a material change takes place in the screen automatically. ARC would With one exception, the remaining future that would require additional permit filers to expedite their own MTE requirements contained in the review or another subsequent filing. reviews, as the system would issue the proposed rule change were published in Members are obligated under the no-objections opinion to the members Notice to Members 01–59, and include Corporate Financing Rules to submit on a 24-hour basis as soon as the the following:15 modifications to underwriting requirements for clearance are satisfied. • The shelf offering or takedown compensation or new items of Such approvals would generally be cannot be the initial public offering of compensation for review after the subject to spot checks and the routine the issuer’s equity securities, and cannot issuance of a no-objections opinion, and member examination process with occur within 90 days of the issuer’s similarly, if a conflict of interest regard to the veracity of undertakings initial public offering; developed, this would be deemed a and information provided to NASD. • The security must be listed on The material change in the terms of the c. Market Transactions Exception Nasdaq Stock Market or a national approval. Therefore, ‘‘life of shelf’’ (MTE). The MTE was designed to securities exchange; clearance means that if a member provide an exception from the filing • The participating member cannot be remains in compliance with the terms of requirements under the Corporate an affiliate of the issuer nor have a its clearance then it would not need to Financing Rules for members that conflict of interest with the issuer; • file again concerning any takedown participate in takedown transactions The transactions are subject to the from a shelf offering for which the that are more like ordinary trading 5% limitation under the Mark-Up Policy member appears in the ‘‘cleared transactions than public offerings. The rather than the compensation members’’ screen. original proposal published in 2001 was limitations under the Corporate If an initial member filing has been well received by the commenters and Financing Rule;16 and • made, but a particular member is not the Committee, although many believed The participating member and its listed on the cleared members screen, that it was too complex and that it associated persons have not acquired an then that member would have to make lacked predictability as it exempted item of value in connection with their a subsequent filing. No fee would be some, but not all transactions governed participation in the shelf offering that charged in connection with such a by underwriting agreements. would be considered underwriting filing, however.13 The member making Accordingly, NASD has simplified the compensation (excluding a discount or the subsequent filing would be required MTE by excluding underwritten commission that complies with the to provide certain summary information transactions and deleting some of the Mark-Up Policy). and representations through web volume limitations published in Notice COBRADesk, and receive a no- to Members 01–59, and clarified that of a shelf registration statement may have to file. For example, if a market maker engaged in solicited objections opinion prior to participating agency and principal transactions must purchases of securities from selling securityholders in the offering. be unsolicited and may not exceed the who were offering their securities pursuant to a Expedited Reviews: In response to greater of 2% of the ADTV for the prospectus, or that engaged in the solicitation of comments requesting expedited retail investors to purchase such securities may security (calculated in accordance with incur a filing obligation. Market makers that engage treatment for shelf offerings, NASD SEC Regulation M) or 10,000 shares, on in such transactions may in fact be participating in proposes to develop an automated any given trading day. the distribution of a public offering, and may have review and clearance (ARC) process for The requirement that transactions be to comply with the requirements of SEC Regulation Subsequent Member Filings of shelf unsolicited applies to both sides of a M. 15 In response to comments from SEC staff, NASD offerings that meet eligibility criteria. securities transaction. For example, in a has narrowed the MTE to exclude securities quoted Although certain offerings, such as principal transaction, the member could on the OTC Bulletin Board. The change was made those that require a qualified neither solicit a selling securityholder to in recognition that the NASD has a significant independent underwriter to resolve regulatory interest in the public distribution of shelf sell shelf-registered securities to it nor registered securities of thinly traded issuers quoted conflicts of interest, would not be solicit a purchaser for such securities. on the OTC Markets. Securities quoted on the eligible for an automated clearance Similarly, in an agency transaction, a OTCBB are generally less liquid and more volatile generated by web COBRADesk, the staff member could not solicit an issuer or than those traded on the national securities exchanges and the Nasdaq Stock Market, and are anticipates that ARC would expedite a selling securityholder to sell, nor could not subject to the corporate governance and other majority of Subsequent Member Filings. it solicit an investor to purchase such qualification requirements of those markets. The system generated no-objections securities. The MTE provides an 16 NASD is proposing to amend its Mark-Up letter would be automatic, if all of the exemption to members that engage in a Policy, IM–2440, to clarify that shelf takedown transactions that come within the parameters of the required information is provided and variety of takedown transactions such as MTE will be subject to the Mark-Up Policy, instead there are no review issues such as unsolicited brokerage transactions, of the generally higher compensation limits proposed compensation that exceeds the principal transactions as a result of available under Rule 2710. NASD is also amending maximum allowable amount. The the Mark-Up Policy to specifically exclude shelf unsolicited customer orders and offerings that are subject to the compensation limits system would recognize when a transactions in member proprietary in Rule 2710, so that a takedown transaction by a Subsequent Member Filing satisfies accounts, subject to the 2% or 10,000 member will either be subject to IM–2440 because these criteria and the member would be share daily limit. it complies with the MTE, or it will be subject to displayed in the ‘‘cleared member’’ Market making transactions in a the compensation limitations of Rule 2710. This is significant in light of the decision by NASD’s security for which a member is a National Adjudicatory Council (NAC) in 13 An initial COBRADesk filing cannot be registered market maker would Department of Enforcement v. Walsh Manning LLC submitted unless the required filing fee is generally not constitute participation in et al. (November, 2003), in which the NAC stated transmitted. Therefore, a fee based on the aggregate in dicta that certain shelf offerings are not subject amount of securities registered would have already a public offering, and NASD would not to Rule 2710 and affirmed that the takedowns in been paid in connection with the initial filing. After consider a posted bid or offer by a which Walsh Manning participated were subject to the fee for all of the securities registered for sale is market maker in the ordinary course of NASD’s Mark-Up Policy instead of Rule 2710. paid, no further filing fees would be required. If, its business to constitute solicitation for Under the proposed rule change, Walsh Manning however, a subsequent filing includes an 14 would have had to make a filing and its amendment that increases the size of the offering purposes of the MTE. compensation would have been subject to Rule or if there is otherwise a balance due, such fees 2710, as the takedowns in which the firm would be required in connection with the 14 A market maker that engages in solicited participated would not have complied with the subsequent filing. transactions involving securities offered by means requirements of the MTE (see also footnote No. 5).

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Based on these restrictions, members compensation based on its analysis of Resale Price Methods would be that anticipate selling shelf registered the arrangement, establishing an available when members are subject to securities in non-underwritten appropriate valuation through the significant market risk due to the size of transactions would be required to assess review process. a takedown transaction or due to their intended participation level to In the absence of an agreement changes in market conditions (in an determine whether the MTE (or other governing a member’s participation in a actively traded or bona fide filing exemption) is available or whether takedown of securities from a shelf independent 18 market) during the an initial or subsequent filing should be registration, the proposed rule change distribution of a shelf takedown. NASD made. Under the proposed rule change, provides alternative methods of solicits comment on whether the a member that only intends to calculation depending on whether a eligibility criteria for these alternative participate in transactions that satisfy transaction was an agency or principal calculation methodologies should be the MTE requirements would not be transaction. In an agency transaction, expanded from those currently required to make a filing. On the other the underwriting compensation would proposed. hand, if a member anticipates that its be the amount of the commission that is NASD believes that these calculation level of participation would exceed the added to the sale price of the securities methodologies will provide greater MTE parameters, the member should paid by investors. In a principal certainty to members and aid them in make a filing in advance of participation transaction where the discount or complying with the underwriting so that it can sell the securities in its commission is not specified by an compensation requirements in accounts or the accounts of its agreement, NASD proposes three connection with their participation in associated persons or affiliates, taking methodologies that members could shelf offerings of securities. advantage of market conditions without utilize to determine compensation having to monitor compliance with amounts: (1) The Resale Spread Method, 2. Statutory Basis various restrictions in the MTE or be in which the discount would be NASD believes that the proposed rule subject to the delay of having to make calculated as the difference between the change is consistent with the provisions a filing later. For example, a member purchase price of the securities off the of Section 15A(b)(6) of the Act, which should anticipate participating in a shelf shelf and their resale price; (2) the requires, among other things, that offering by selling security holders if a Prevailing Market Price Method, in NASD’s rules must be designed to substantial percentage of the securities which the discount would be calculated prevent fraudulent and manipulative offered by the selling security holders as the difference between the purchase acts and practices, to promote just and are held in the member’s proprietary or price of the securities off the shelf and equitable principles of trade, and, in customer accounts, such that it would the ‘‘prevailing market price’’ of the general, to protect investors and the be likely that proprietary transactions or security at the time of purchase; 17 and public interest. Specifically, we believe transactions with its customers or (3) the Initial Resale Price Method, in that the proposed rule change amends affiliates would exceed 2% of the ADTV which the discount would be calculated NASD’s Corporate Financing Rule to for the security on a given trading day. as the difference between the purchase provide greater clarity regarding when The proposed rule change would price of the securities off the shelf and to make filings for shelf offerings while require each member that anticipates the price at which the first significant also ensuring that such filing participating in a shelf offering amount of sales after the takedown were requirements do not undermine the takedown to determine whether a filing executed. This third methodology flexibility intended by the shelf exemption or the MTE is available, and would take into account market price registration process. if not, whether its participation would movements that occur subsequent to a require an initial filing, subsequent member’s acquisition of the shelf- B. Self-Regulatory Organization’s filing, or no filing at all, because the registered securities that could affect the Statement on Burden on Competition member is already included in the discount, while ensuring that enough NASD does not believe that the ‘‘cleared members’’ COBRADesk screen securities are sold to establish a proposed rule change will result in any for that shelf offering and has ‘‘life of reasonable, bona fide compensation burden on competition that is not shelf’’ clearance. calculation. necessary or appropriate in furtherance d. Underwriting Compensation. Under In a principal transaction, NASD of the purposes of the Act, as amended. the proposed rule change, the amount of anticipates that the Resale Spread underwriting compensation in a shelf method would be the primary method of C. Self-Regulatory Organization’s takedown governed by an underwriting, calculating underwriting compensation, Statement on Comments on the equity line, private investments in due to the market and transaction size Proposed Rule Change Received From public equity (PIPE), or similar requirements of the other methods. The Members, Participants, or Others agreement between the issuer and any Resale Price Method would generally be The proposed rule change was selling member would generally be the most accurate measure of published for comment in NASD Notice based on the commission or discount set compensation regardless of the type of to Members 01–59 (September 2001). forth in the agreement. Such agreements security or manner of distribution. The NASD received six comment letters 19 may be firm commitment underwriting Prevailing Market Price and Initial that generally supported the proposal agreements, best-efforts underwriting and the need to amend the rules. agreements, equity lines of credit 17 The prevailing market price would be However, several commenters also were agreements, purchase agreements, or determined pursuant to IM–2440, the Mark-Up concerned that the new approach might some other form of agreement for the Policy, and Notice to Members 92–16. Because this methodology would not work in a dominated or prove more burdensome and expensive sale of securities from a shelf controlled market, we propose not to make it than the current rules. Of the six registration. Where there may be some available for offerings of securities of thinly-traded comment letters received, three were in question concerning the appropriate issuers. The proposed rule change would require favor of the proposed rule change and valuation of a discount that is governed that the takedown security be an Actively Traded Security under Regulation M, or a security with a by a market-based formula or other more bona fide independent market, as defined in NASD 18 Telephone conversation between NASD and complex compensation arrangement, Rule 2720(b) to qualify for the use of the Prevailing Commission Staff on November 22, 2004. NASD intends to value the Market Price Method. 19 See note 6, supra.

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three viewed portions of the proposal public float as a condition for drawn and ensure that the assets, unfavorably. NASD notes that the exemption from trading restrictions liabilities and public information proposed rule change has undergone during secondary distributions. This regarding the successor are equivalent to significant revisions since the requirement supports NASD’s position those of other issuers whose shelf- publication of Notice to Members 01–59 that issuers with less than a $150 registered offerings are eligible for the and the comment letters were sent in million float are more prone to abusive S–3/F–3 exemption. response to the original proposal. or fraudulent trading and distribution One commenter recommends that the In general, the commenters suggested activity. The SEC adopted SEC Rule be amended to provide an further reductions in members’ Regulation M in 1997, five years after additional exemption for offerings by regulatory burdens and additional the requirements for Forms S–3/F–3 issuers filing on Form F–9.22 The exemptions from the filing requirement. were relaxed. Department rarely, if ever, receives NASD does not believe that the more Third, in Notice to Members 93–88, offerings registered on Form F–9.23 comprehensive exemptions suggested the NASD stated that competitive Form F–9 permits registration of non- by some commenters, such as market forces and an active following in convertible debt rated investment grade exemptions for all Form S–3 filings or the investment community were by an NRSRO or an ‘‘Approved Rating all shelf offerings, is warranted. In important factors in its decision to Organization.’’ Due to the fact that there 20 addition, several commenters exempt S–3/F–3 shelf offerings. When is already an exemption in the apparently misunderstood some aspects compared to issuers that are larger and Corporate Financing Rule for offerings of the proposal. We describe the have been reporting companies for a of securities rated investment grade and comments received and the way that the longer period, S–3/F–3 filers with only the lack of filings on Form F–9, we do proposal was modified in response. We a 12-month reporting history and a $75 not find this request for a filing also describe several suggestions made million float would be less likely to be exemption necessary at this time. by the commenters that NASD does not followed by investment professionals support because they would not and investors, and would be more likely Schedule B Issuers Exemption: Two improve the Corporate Financing Rules to have thinly-traded markets for their commenters recommend that NASD or would be inconsistent with their equity securities. Accordingly, we amend the proposal to include an purpose. believe that such companies would be exemption from filing for Schedule B 24 Filing Exemptions for Shelf Offerings: more likely to be subjected to issuers. They state that foreign The proposed rule change eliminates unreasonable underwriting provisions. sovereigns offering debt securities in the the explicit references to ‘‘pre-1992’’ NASD has ongoing investigations that U.S. use Schedule B rather than the Form S–3 eligibility requirements in the involve securities registered on Form S– Forms F–3 or F–10. Currently, there is filing exemption for securities registered 3.21 The float and reporting history no exemption from NASD filing on Forms S–3 (and F–3) offered requirements in the Corporate Financing requirements for these offerings. We pursuant to SEC Rule 415 while Rule provide the NASD with an disagree that foreign governments or preserving the current filing opportunity to review these offerings their political subdivisions that are requirements. This change adds clarity prior to effectiveness and uncover eligible under SEC rules to use Schedule and simplicity as members or their problems with the compensation B are not likely to need NASD review counsel will no longer need to structure and other potential violations of the underwriting terms and determine what eligibility criteria for before members can sell the securities to arrangements with U.S. underwriters. those forms were in effect prior to the public. NASD believes such an exemption October 1992. One commenter suggests that the would be inappropriate in light of Some commenters requested that provision in Forms S–3 and F–3 that recent concerns related to inequitable NASD reduce the S–3/F–3 exemption permits a successor entity to tack on the practices of members in such offerings. requirements to 12 months reporting reporting period of a predecessor These recent investigations call into history and $75 million in public float, organization should be incorporated question the assumptions that in line with the current eligibility into the Form S–3/F–3 exception in the commenters have made concerning the requirements for those forms. NASD Corporate Financing Rule. We agree that ability of Schedule B issuers to negotiate believes there are important regulatory a successor registrant should be eligible on an even footing with global purposes for the current filing to tack the reporting history of its investment banking firms to whom the requirements and accordingly, we do predecessor in order to meet the 36- issuer depends on for advice and not propose to expand the S–3/F–3 month reporting history requirement in funding. Accordingly, NASD has not exemption in response to the comments the Corporate Financing Rule. The included such an exemption in the for the reasons described below: requirements for tacking are narrowly proposed rule change. First, the 12-month reporting and $75 million float requirements currently in 20 NASD is proposing to rescind an interpretation 22 Large publicly-traded Canadian issuers effect are criteria that determine included in Notice to Members 93–88 (December registering non-convertible investment grade whether an issuer is eligible for a 1993) that stated the filing exemption for S–3/F–3 securities may use Form F–9. particular type of registration form. The shelf offerings was not available if the shelf- 23 Based on the results of a database search, no registered securities were sold in a conventional recent filings on Form F–9 were identified. Commission does not exempt the underwritten offering within a few days following 24 Schedule B is the Registration Statement used companies that meet these eligibility the effective date of the registration statement. This by foreign governments (or political subdivisions of requirements from filing a registration change will liberalize the filing exemption and foreign governments) to register securities. If the statement. Accordingly, the argument allow more offerings to be exempt from filing. distribution involves a shelf offering, language NASD also proposed to rescind this policy in Notice appearing on a Schedule B Registration Statement that NASD should exempt such to Members 01–59 (September 2001). would be similar to the following: ‘‘The securities offerings from filing, and that the 21 These cases involve allegations of undisclosed being registered hereby are to be offered on a Corporate Financing Rule’s filing underwriting compensation, conflicts of interest, delayed or continuous basis pursuant to Releases exemption should automatically track a failure to file, violations of SEC Regulation M, and No. 33–6248 and 33–6424 under the Securities Act other charges. In addition, shelf-registered equity of 1933.’’ Therefore, a Schedule B filer is not registration form eligibility requirement line financings have raised significant issues technically making its shelf offering pursuant to is not persuasive. Second, SEC regarding compliance with NASD Conduct Rules SEC Rule 415, but through other provisions Regulation M requires a $150 million and the federal securities laws. afforded foreign governments.

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Multi-Issuer (Trust) Exemptions: One automatic, if all of the required Rule. The Department would not review commenter noted an increase in the information is provided and there are no DPPs for compliance with the number of ‘‘multi-issuer’’ shelf offerings review issues such as proposed substantive provisions in the Corporate by individual corporate groups. The compensation that exceeds the Financing Rule. commenter explained that these maximum allowable amount. The Mark-Up Policy: One commenter transactions involve multiple offerings system would recognize when a opposed amending IM–2440 since the of debt and equity securities by a parent Subsequent Member Filing satisfies amendment targets shelf offerings or operating entity and offerings of trust these criteria and the member would be exempt under the Market Transaction preferred or pass-through securities displayed in the ‘‘cleared member’’ Exception. The commenter claims that (‘‘Trust Preferred’’) by special purpose screen automatically. ARC would shelf offerings exempt under MTE are vehicles created by the parent or permit filers to expedite their own only exempt from the filing requirement operating entity. The commenter reviews, as the system would issue the of Rule 2710, yet still subject to the suggested that offerings of Trust no-objections opinion to the member(s) compensation limits of Rule 2710 and Preferred securities should be exempt on a 24-hour basis as soon as the Rule 2810. from filing when the parent or operating requirements for clearance are satisfied. The commenter misunderstands the entity satisfies the criteria for the S–3/ Notice Filing Requirements: Notice purpose of the exemption. We do not F–3 exemption or the exemption for Filings were proposed in Notice to anticipate that the Market Transaction issuers with investment grade rated Members 01–59 (September, 2001) in Exception will apply to most shelf debt. order to provide members with offerings. The exception is designed to NASD does not agree that the increased flexibility to quickly take be narrow and cover securities sold on proposal should be amended to include advantage of market opportunities. For an agency basis in an ordinary market an exemption for Trust Preferred certain offerings, members could file transaction that does not rise to the level securities due to problems recently after they participated in a takedown of a ‘‘distribution.’’ Because such trades uncovered in investigations that have and would not need a no-objections are not distributions, the generally involved securities issued from trusts opinion prior to such participation in higher compensation limits available formed as special purpose financing the offering. Many commenters under the Corporate Financing Rule for vehicles. The Department generally suggested that Notice Filings would not members engaged in a distribution reviews Trust Preferred securities as result in the efficiencies envisioned by would not be available. Instead, the DPP offerings under Rule 2810 because the staff. Some commenters suggested transaction would be governed by the of their pass through features. The that Notice Filings would create risks NASD’s Mark-Up Policy. Department has recently encountered for members as the regulatory review The Acquisition of Unregistered regulatory problems with a variety of would shift to an examination function Securities and Rule 144A: Two DPP offering structures, terms and as opposed to the pre-effective review commenters state that, in their compensation arrangements, and does and comment process that is currently experience, securities acquired by not believe it would be appropriate to in effect. Members expressed concern members and their associated persons exempt as a class such offerings from that the filing process and fees did not from issuers before a shelf offering are review. provide any benefit to members and that not compensatory and do not represent Expedited Reviews: Several members would prefer to manage their an opportunity to provide underwriting commenters suggested that the 15- regulatory risk in a different manner. compensation to NASD members for a business day review period should be Four commenters contend that since the subsequent offering. The commenters shortened in light of the market timing NASD will not render an opinion in state that members and their affiliates and competitive environment associated connection with these filings, then there frequently hold securities of issuers sold with shelf offerings. In most cases, the would be reason to make a filing, as in Rule 144A offerings, which may have Department believes it can complete its NASD rules generally do not require been acquired as an unsold allotment by review in far fewer than 15 days. The members to make filings for the purpose a dealer acting as an initial purchaser, Department is generally attentive to of confirming their compliance with the from other dealers acting as initial requests for expedited reviews and rules. Commenters also expressed purchasers, or from third parties in the prioritizes the review of offerings to concern that the Notice Filing deadlines private secondary resale market. These address the timing concerns of within 3 and 10 business days of a commenters claim that if a member members, and the staff has developed takedown could cause confusion. To purchased securities of the issuer’s procedures for expedited reviews and address these concerns, the staff has securities pursuant to Rule 144A, the would give priority to meeting the eliminated the Notice Filing proposal. member could not underwrite a shelf timing needs of members that must Coordination of Rule 2710 and Rule tranche within 180-days of the receive a no-objections letter prior to 2810: Two commenters were concerned takedown, as the acquisitions would participating in a shelf offering. that the proposal makes offerings make the member ineligible for a Notice In addition, Subsequent Member subject to Rule 2810 (direct Filing. One commenter notes that this Filings of shelf takedowns that meet participation programs) subject to the may have a negative effect upon issuers certain criteria would be eligible for provision of the Corporate Financing because they may be prohibited from expedited reviews through an Rule. They recommend that the using the investment bankers with automated review and clearance (ARC) proposed rule change should not be whom they are most familiar and would process. For certain takedown made without further review of each of create an unlevel playing field among transactions, such as those that do not the provisions of the Corporate members and reduce competitive require a qualified independent Financing Rule, as it would apply to choices for issuers. underwriter due to conflicts of interest, offerings subject to Rule 2810. NASD staff notes that these comments members would be eligible for an The proposed amendments only were generated as a result of the Notice automatic clearance generated by web apply to the filing requirements of Rule Filing proposal, which was eliminated. COBRADesk for any filings that follow 2810 and conform these requirements Under the proposed rule change, the Initial Member Filing. The system and the filing fee requirements with the members that anticipate participation in generated no-objections letter would be requirements in the Corporate Financing a shelf offering, subject to available

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filing exemptions and the Market III. Date of Effectiveness of the submissions should refer to file number Transactions Exception, will make Proposed Rule Change and Timing for SR–NASD–2004–022 and should be either an initial or a subsequent filing. Commission Action submitted by January 21, 2005.27 Unregistered securities that constitute Within 35 days of the date of For the Commission, by the Division of items of value that were acquired by publication of this notice in the Federal Market Regulation, pursuant to delegated such members, or their affiliates and Register or within such longer period (i) authority.28 associated persons within 180 days of as the Commission may designate up to Jill M. Peterson, the filing would be reviewed by NASD 90 days of such date if it finds such Assistant Secretary. and would only be deemed longer period to be appropriate and underwriting compensation if publishes its reasons for so finding or [FR Doc. 04–26809 Filed 12–6–04; 8:45 am] appropriate, and subjected to the (ii) as to which the self-regulatory BILLING CODE 8010–01–P applicable compensation limitations organization consents, the Commission and disclosure requirements of the will: Corporate Financing Rules. A. By order approve such proposed Selected Dealers: One commenter rule change, or DEPARTMENT OF STATE suggested that compensation to selected B. Institute proceedings to determine dealers is not relevant to underwriting whether the proposed rule change [Public Notice 4917] compensation. Another commenter should be disapproved. wrote that selected dealers are not Culturally Significant Object Imported IV. Solicitation of Comments underwriters for purposes of the for Exhibition Determinations: ‘‘Andre´ 25 Securities Act. These commenters Interested persons are invited to Kerte´sz’’ claim that selected dealers should be submit written data, views, and excepted from the information required arguments concerning the foregoing, SUMMARY: Notice is hereby given of the by the NASD concerning participating including whether the proposed rule following determinations: Pursuant to members, and unregistered securities change is consistent with the Act. the authority vested in me by the Act of and items of value received by selected Comments may be submitted by any of October 19, 1965 (79 Stat. 985; 22 U.S.C. dealers should not be included in the the following methods: 2459), Executive Order 12047 of March calculation of underwriting Electronic Comments 27, 1978, the Foreign Affairs Reform and compensation. They also claim that Restructuring Act of 1998 (112 Stat. • Use the Commission’s Internet selected dealers should not have an 2681, et seq.; 22 U.S.C. 6501 note, et comment form (http://www.sec.gov/ obligation to make filings under the seq.), Delegation of Authority No. 234 of 26 rules/sro.shtml); or Corporate Financing Rule. October 1, 1999, and Delegation of The basic premise for including • Send an e-mail to rule- Authority No. 236 of October 19, 1999, selected dealers’ compensation as [email protected]. Please include File as amended, and Delegation of underwriting compensation is that such Number SR–NASD–2004–022 on the Authority No. 257 of April 15, 2003 [68 members are participating in the subject line. FR 19875], I hereby determine that the distribution of an offering. The Paper Comments object to be included in the exhibition definition of ‘‘participation in a public • ‘‘Andre´ Kerte´sz,’’ imported from abroad offering’’ in the Corporate Financing Send paper comments in triplicate for temporary exhibition within the Rules, includes participating on ‘‘*** to Jonathan G. Katz, Secretary, United States, is of cultural significance. an underwritten, non-underwritten, or Securities and Exchange Commission, The object is imported pursuant to a any other basis * * *’’ and therefore 450 Fifth Street, NW., Washington, DC loan agreement with the foreign owner. includes selected dealers. Moreover, the 20549–0609. I also determine that the exhibition or rule specifically requires that selected All submissions should refer to File display of the exhibit object at the dealer agreements be filed for review. No. SR–NASD–2004–022. This file National Gallery of Art, Washington, DC The staff has reviewed offerings in number should be included on the from on or about January 30, 2005 to on which a selected dealer was allocated a subject line if e-mail is used. To help us or about May 1, 2005, the J. Paul Getty substantial portion of the underwritten process and review comments more Museum, Los Angeles, CA from on or securities due to its relationship with efficiently, comments should be sent in about June 7, 2005, to on or about the issuer and the managing hardcopy or by e-mail but not by both August 28, 2005, and at possible underwriter. NASD Notice to Members methods. The Commission will post all additional venues yet to be determined, 88–101 states that the ‘‘participation of comments on the Commission’s Internet is in the national interest. Public Notice a member in any offering of securities Web site (http://www.sec.gov/rules/ of these determinations is ordered to be distributed pursuant to Rule 415 sro.shtml). Copies of the submission, all published in the Federal Register. constitutes participation in a public subsequent amendments, all written offering.’’ Excluding selected dealers statements with respect to the proposed FOR FURTHER INFORMATION CONTACT: For would create loopholes in the treatment rule change that are filed with the further information, including a list of of underwriting compensation and Commission, and all written the exhibit object, contact Carol B. conflicts of interest. NASD views communications relating to the Epstein, Attorney-Adviser, Office of the selected dealers as members proposed rule change between the Legal Adviser, Department of State, participating in public offerings. Commission and any person, other than (telephone: 202/453–8048). The address those that may be withheld from the is Department of State, SA–44, 301 4th 25 Section 2(a)(11) of the Securities Act provide public in accordance with the Street, SW., Room 700, Washington, DC that the term underwriter ‘‘shall not include a provisions of 5 U.S.C. 552, will be 20547–0001. person whose interest is limited to a commission available for inspection and copying in from an underwriter or dealer not in excess of the the Commission’s Public Reference usual and customary distributors’ or sellers’ 27 NASD has consented to an extension of time for commission.’’ Room. Copies of such filing will also be the Commission to take action on this proposed rule 26 Selected Dealers are typically covered by the available for inspection and copying at change. filing made by a managing underwriter. the principal office of NASD. All 28 17 CFR 200.30–3(a)(12).

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Dated: December 1, 2004. DEPARTMENT OF STATE and 414. Answers may be filed within C. Miller Crouch, 21 days after the filing of the [Public Notice 4919] Principal Deputy Assistant Secretary for application. Educational and Cultural Affairs, Department Culturally Significant Objects Imported Docket Number: OST–2004–19687. of State. for Exhibition Determinations: ‘‘Tall Date Filed: November 18, 2004. [FR Doc. 04–26822 Filed 12–6–04; 8:45 am] Trees at the Jas de Bouffan’’ Parties: Members of the International BILLING CODE 4710–08–P Air Transport Association. AGENCY: Department of State. Subject: PTC31 N&C/CIRC 0288 dated ACTION: Notice. 19 November 2004, Mail Vote 420–TC31 DEPARTMENT OF STATE North and Central Pacific Montreal, 25 SUMMARY: Notice is hereby given of the October–2 November 2004, TC3 (except following determinations: Pursuant to [Public Notice 4918] Japan)—North America, Caribbean the authority vested in me by the Act of Expedited Resolution 002at (except October 19, 1965 [79 Stat. 985; 22 U.S.C. between Korea (Rep. of), Malaysia and Culturally Significant Objects Imported 2459], Executive Order 12047 of March for Exhibition Determinations: USA) r1, Intended effective date: 15 27, 1978, the Foreign Affairs Reform and January 2005. ‘‘Rembrandt’s Late Religious Restructuring Act of 1998 [112 Stat. Docket Number: OST–2004–19688. Portraits’’ 2681, et seq.; 22 U.S.C. 6501 note, et Date Filed: November 18, 2004. seq.], Delegation of Authority No. 234 of SUMMARY: Parties: Members of the International Notice is hereby given of the October 1, 1999 [64 FR 56014], Air Transport Association. following determinations: Pursuant to Delegation of Authority No. 236 of Subject: PTC123 0301 dated 19 the authority vested in me by the Act of October 19, 1999 [64 FR 57920], as November 2004, Mail Vote 421, October 19, 1965 (79 Stat. 985; 22 U.S.C. amended, and Delegation of Authority Montreal, 25 October–2 November 2004, 2459), Executive Order 12047 of March No. 257 of April 15, 2003 [68 FR 19875], TC123 North/Mid/South Atlantic 27, 1978, the Foreign Affairs Reform and I hereby determine that the object to be Expedited Resolutions (except between Restructuring Act of 1998 (112 Stat. included in the exhibition, ‘‘Tall Trees USA and Korea (Rep. of), Malaysia) r1– 2681, et seq.; 22 U.S.C. 6501 note, et at the Jas de Bouffan,’’ imported from r20, Intended effective date: 15 January seq.), Delegation of Authority No. 234 of abroad for temporary exhibition within 2005. October 1, 1999, and Delegation of the United States, is of cultural Authority No. 236 of October 19, 1999, significance. The object is imported Maria Gulczewski, as amended, and Delegation of pursuant to a loan agreement with the Supervisory Dockets Officer, Federal Register Authority No. 257 of April 15, 2003 [68 foreign lender. I also determine that the Liaison. FR 19875], I hereby determine that the exhibition or display of the exhibit [FR Doc. 04–26810 Filed 12–6–04; 8:45 am] objects to be included in the exhibition object at the J. Paul Getty Museum, Los BILLING CODE 4910–62–P ‘‘Rembrandt’s Late Religious Portraits,’’ Angeles, California, from on or about imported from abroad for temporary January 5, 2005, to on or about April 30, exhibition within the United States, are 2005, and at possible additional venues DEPARTMENT OF TRANSPORTATION of cultural significance. The objects are yet to be determined, is in the national imported pursuant to a loan agreement interest. Public Notice of these Federal Aviation Administration with the foreign owners. I also determinations is ordered to be [Summary Notice No. PE–2004–85] determine that the exhibition or display published in the Federal Register. of the exhibit objects at the National FOR FURTHER INFORMATION CONTACT: For Petitions for Exemption; Summary of Gallery of Art, Washington, DC from on Petitions Received; Correction or about January 30, 2005 to on or about further information, contact Paul W. Manning, Attorney-Adviser, Office of May 1, 2005, the J. Paul Getty Museum, AGENCY: Federal Aviation the Legal Adviser, 202/619–5997, and Los Angeles, CA from on or about June Administration (FAA), DOT. 7, 2005, to on or about August 28, 2005, the address is United States Department of State, SA–44, Room 700, 301 4th ACTION: Notice of petition for exemption and at possible additional venues yet to received; correction. be determined, is in the national Street, SW., Washington, DC 20547– interest. Public Notice of these 0001. SUMMARY: This document makes a determinations is ordered to be Dated: December 1, 2004. correction to the docket number and the published in the Federal Register. C. Miller Crouch, contact information in the summary of Principal Deputy Assistant Secretary for petitions received published in the FOR FURTHER INFORMATION CONTACT: For Educational and Cultural Affairs, Department Federal Register on November 30, 2004. further information, including a list of of State. That notice provided details of a the exhibit objects, contact Carol B. [FR Doc. 04–26824 Filed 12–6–04; 8:45 am] petition for exemption from the Air Epstein, Attorney-Adviser, Office of the BILLING CODE 4710–08–P Transport Association (ATA). Legal Adviser, Department of State, EFFECTIVE DATE: (telephone: 202/453–8048). The address This correction is is Department of State, SA–44, 301 4th effective on December 7, 2004. DEPARTMENT OF TRANSPORTATION Street, SW., Room 700, Washington, DC FOR FURTHER INFORMATION CONTACT: John Linsenmeyer (202) 267–5174. 20547–0001. Office of the Secretary Dated: December 1, 2004. Correction C. Miller Crouch Aviation Proceedings, Agreements Filed the Week Ending November 19, In the notice of petition for exemption Principal Deputy Assistant Secretary for 2004 received, FR Doc. 04–26340, published Educational and Cultural Affairs, Department on November 30, 2004, (69 FR 69665), of State. The following Agreements were filed make the following corrections: [FR Doc. 04–26823 Filed 12–6–04; 8:45 am] with the Department of Transportation 1. On page 69665, in column 1, under BILLING CODE 4710–08–P under the provisions of 49 U.S.C. 412 the heading ADDRESSES, on the third line

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from the bottom, correct the docket Sunday, January 9, 2005. Registration pipeline segments in Ohio that have number to read ‘‘FAA–2004–17481’’. begins at 8 a.m. and the forum starts at changed from Class 1 to Class 2. 2. On page 69665, in column 2, under 8:30 a.m. and ends at 1 p.m. DATES: Persons interested in submitting the heading FOR FURTHER INFORMATION Registration: This forum is listed as a written comments on the waiver CONTACT:, replace ‘‘Annette K. Kovite session in the TRB Annual Meeting proposed in this notice must do so by (425–227–1262), Transport Airplane Program, and all registrants are welcome January 6, 2005. Late-filed comments Directorate (ANM–113), Federal to attend. TRB registration is not will be considered so far as practicable. Aviation Administration, 1601 Lind required to attend the forum, and it is ADDRESSES: You may submit written Ave., SW., Renton, WA 98055–4056;’’ open to the public at no cost. To register comments by mailing or delivering an with ‘‘Susan Lender (202–267–8029)’’. for the TRB Annual Meeting, visit http:/ original and two copies to the Dockets Issued in Washington, DC on December 2, /www.trb.org. To attend the forum only, Facility, U.S. Department of 2004. you can send an e-mail to Transportation, Room PL–401, 400 Anthony F. Fazio, [email protected]. Seventh Street, SW., Washington, DC Director, Office of Rulemaking. FOR FURTHER INFORMATION CONTACT: Mr. 20590–0001. The Dockets Facility is [FR Doc. 04–26862 Filed 12–2–04; 4:27 pm] Albert Alvarez, Office of Research and open from 10 a.m. to 5 p.m., Monday BILLING CODE 4910–13–P Technology (MC–RTR), Federal Motor through Friday, except on Federal Carrier Safety Administration, 400 holidays when the facility is closed. Virginia Avenue, SW., Washington, DC Alternatively, you may submit written DEPARTMENT OF TRANSPORTATION 20024; telephone (202) 385–2387 or e- comments to the docket electronically at mail [email protected]. the following Web address: http:// Federal Motor Carrier Safety Office hours are from 8 a.m. to 4:30 dms.dot.gov. Administration p.m., e.s.t., Monday through Friday, All written comments should identify [Docket No. FMCSA–2004–19456] except Federal holidays. the docket and notice numbers stated in SUPPLEMENTARY INFORMATION: Forum the heading of this notice. Anyone who Office of Research and Technology attendees will receive an information wants confirmation of mailed comments Forum; Meeting packet on current programs of the Office must include a self-addressed stamped postcard. To file written comments AGENCY: Federal Motor Carrier Safety of Research and Technology. While the electronically, after logging on to http: Administration (FMCSA), DOT. forum will be open to the public, there //dms.dot.gov, click on ‘‘Comment/ ACTION: Notice of Meeting/Forum. is limited space. If you require accommodations (sign, reader, etc.) for a Submissions.’’ You can also read SUMMARY: This notice invites you to special need, please call Joanice Cole at comments and other material in the participate in a forum titled, ‘‘FMCSA (202) 334–2287, or e-mail docket at http://dms.dot.gov. General R&T: Today and Tomorrow’’, sponsored [email protected]. information about our pipeline safety program is available at http:// by FMCSA’s Office of Research and Issued on: November 29, 2004. ops.dot.gov. Technology (R&T) in conjunction with Annette M. Sandberg, the 84th Annual Meeting of the Anyone is able to search the Administrator. Transportation Research Board (TRB). electronic form of all comments The purpose of the forum is to provide [FR Doc. 04–26851 Filed 12–6–04; 8:45 am] received into any of our dockets by the insight on some of the research and BILLING CODE 4910–EX–P name of the individual submitting the technology work that FMCSA sponsors comment (or signing the comment, if in support of its missions of reducing submitted on behalf of an association, DEPARTMENT OF TRANSPORTATION the number and severity of commercial business, labor union, etc.). You may review DOT’s complete Privacy Act motor vehicle (CMV) crashes and Research and Special Programs Statement in the Federal Register fatalities and enhancing efficiency of Administration CMV operations. Presenters will speak published on April 11, 2000 (Volume about current FMCSA R&T projects and [Docket No. RSPA–04–19469; Notice 1] 65, Number 70; Pages 19477–78) or you the status of studies and technologies may visit http://dms.dot.gov. under consideration as part of the draft Pipeline Safety: Petition for Waiver; FOR FURTHER INFORMATION CONTACT: R&T 5-Year Strategic Plan. Speaker Duke Energy Gas Transmission James Reynolds by phone at 202–366– topics will cover the Crash Causation Company (OH) 2786, by fax at 202–366–4566, by mail Study, Electronic On-Board Recorders, AGENCY: Research and Special Programs at U.S. DOT, Research and Special the HazMat Operational Test, Vehicle Administration (RSPA), DOT. Programs Administration, Office of Infrastructure Integration, and Fatigue ACTION: Notice; petition for waiver. Pipeline Safety, 400 Seventh Street, Management Technologies. The keynote SW., Washington, DC 20590, or by e- address will feature a trucking SUMMARY: Duke Energy Gas mail at [email protected]. association representative who will Transmission Company (DEGT) SUPPLEMENTARY INFORMATION: discuss both safety partnerships petitioned the Research and Special between industry and FMCSA and the Programs Administration’s (RSPA) 1. Background role that research and technology plays Office of Pipeline Safety (OPS) for a Duke Energy Gas Transmission in helping the trucking industry move waiver of compliance with provisions of Company (DEGT) petitioned the towards safer, more efficient and secure 49 CFR 192.611(a), which requires Research and Special Programs operations. There will be an opportunity pipeline operators to confirm or revise Administration’s Office of Pipeline for attendees to talk with FMCSA the maximum allowable operating Safety (RSPA/OPS) for a waiver from subject-matter experts in an open pressure (MAOP) of their pipelines after compliance with § 192.611(a) for question and answer session. a class location change. DEGT proposes selected gas transmission pipeline Where and When: Marriott Wardman an alternative set of risk control segments in Ohio. DEGT asks for a Park Hotel, Salon III, 2660 Woodley activities in lieu of a reduction in waiver from the requirement to revise Road, NW., Washington, DC 20008, on pressure or pressure testing of selected the maximum allowable operating

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pressure (MAOP) or upgrade pipeline Alternatively, the operator may need to 3. DEGT’s Proposed Alternative segments after a class location change. reduce the pressure or replace the pipe In lieu of compliance with DEGT proposes to conduct alternative with new pipe. § 192.611(a), DEGT proposes to conduct risk control activities based on the On June 29, 2004, RSPA/OPS the following activities to ensure the principles and requirements of the published a Notice announcing the integrity of the two pipeline segments integrity management program in lieu of criteria it will use in considering class included in this waiver request and any this requirement and asserts that these location change waiver applications (69 future sites on the Wheelersburg alternative risk control activities will FR 38948). The criteria document has Compressor Station discharge changing provide an equal or higher level of been placed in this docket and is the from Class 1 to Class 2: safety than that currently provided by guideline RSPA/OPS will use to • All site(s) covered by waiver have the pipeline safety regulations. consider requests for waivers from the been in-line inspected at least twice The Federal pipeline safety requirements of 49 CFR 192.611. RSPA/ between 1986 and 2002; regulations at § 192.609 require a gas OPS will use these criteria to evaluate • All actionable anomalies within the pipeline operator to complete a class waiver applications submitted by site(s) have either been remediated or location change study whenever it natural gas pipeline operators whose are scheduled to be investigated, and believes an increase in population pipeline segments have experienced a subsequently remediated, if necessary, density may have caused a change in change in class location. as defined in ASME B31.8S and DEGT class location as defined in § 192.5. If a Pipeline Repair procedures. A schedule new class location is confirmed, the 2. DEGT’s Proposed Waiver of remedial measures to be performed operator is required to either reduce DEGT’s request for a waiver of the on future waiver sites will be submitted pressure or replace the pipe to lower requirements of § 192.611(a) is specific to OPS headquarters and OPS regional pipe wall stress in compliance with to two parallel line segments on Line 10 offices; § 192.611(a). Section 192.5(a)(1) defines and Line 15, which are part of its Texas • For future sites covered by this a ‘‘class location unit’’ as an onshore Eastern Pipeline System in the State of waiver, DEGT will use tools and area extending 220 yards (200 meters) Ohio. These segments are located within techniques developed through the on either side of the centerline of any DEGT’s: activities described in the waiver continuous one-mile length of pipeline. request for the identification, The Class Location for any class Wheelersburg Compressor Station classification and possible remediation location unit is determined according to Discharge: Milepost (MP) 563.72–620.70 of dents; and the following criteria in § 192.5(b): Line 10: MP 568.99–569.13. • The site(s) must pass a hydrostatic Class 1—10 or fewer buildings Line 15: MP 569.41–569.55. test to a pressure of at least 125% of the intended for human occupancy; The pipelines are 30-inch in diameter MAOP of the pipeline. DEGT will make Class 2—more than 10 but less than available to RSPA/OPS and the Ohio 46 buildings intended for human and the class locations have changed from Class 1 to Class 2. If this waiver is Public Utilities Commission (OH–PUC) occupancy; a report of all hydrostatic test failures Class 3—46 or more buildings granted, DEGT intends to apply the alternative set of risk reduction experienced at this test pressure. intended for human occupancy, or areas DEGT has already satisfied the above where a pipeline lies within 100 yards strategies to any future sites changing from Class 1 to Class 2 on the same criteria for the current pipeline (91 meters) of either a building or a segments proposed in this waiver small, well-defined outside area (such compressor station discharges of Lines 10 and 15, provided these new sites request. DEGT commits to provide the as a playground, recreation area, OPS’s Central Region and the OH–PUC outdoor theater, or other place of public satisfy the technical requirements of the waiver. with sufficient notice to enable RSPA/ assembly) that is occupied by 20 or OPS and OH–PUC staff to attend and Lines 10 and Lines 15 were more persons on at least 5 days a week participate in all risk assessment hydrotested and all welds were X-rayed for 10 weeks in any 12-month period; activities. Class 4—buildings with four or more at installation in 1952 and 1957, In addition, DEGT has proposed the stories above ground are prevalent. respectively, to 100% SMYS. DEGT has following schedule of near-term and The pipeline safety regulations internally inspected each of these long-term activities to help maintain impose more stringent design and pipelines. DEGT inspected Line 10 on pipeline integrity on the proposed operation requirements as the class January 24, 1986, and again on May 13, waiver segments. location increases. When a class 1997. DEGT inspected Line 15 on In 2004— location changes to a higher class (e.g., January 27, 1986, and again on May 1, • Review the 2002 ILI results for Line from Class 1 to Class 2) and the hoop 2002. Both lines were internally 15 for any remaining actionable stress corresponding to the established inspected using a standard resolution anomalies. Schedule these anomalies for MAOP of the segment is not in-line inspection (ILI) tool. All cathodic investigation/remediation as defined in commensurate with the present class protection readings on these two 49 CFR Part 192, Subpart O, ASME location, the MAOP must be confirmed pipelines either meet or exceed the B31.8S, and DEGT Pipeline Repair by pressure test or revised using one of minimum requirements of 49 CFR Part Procedures. the options specified in § 192.611(a). An 192. • Depth of cover survey to be operator may avoid reducing the The proposed DEGT waiver segments conducted in the waiver sites. pressure if a previous pressure test is have changed from Class 1 to Class 2 In 2005— adequate to support operation at the due to construction of additional • Perform an in-line inspection using existing pressure in the new class buildings intended for human a high-resolution magnetic flux leakage location, but the corresponding hoop occupancy in the class location units. tool and a geometry tool on Line 10. All stress may not exceed 72 percent DEGT believes its alternative to actionable anomalies found through the specified maximum yield strength § 192.611(a) will provide a level of in-line inspection will be investigated/ (SMYS) of the pipe in Class 2 locations, safety in excess of that afforded by the remediated on as defined in 49 CFR Part 60 percent SMYS in Class 3 locations, pipeline safety regulations at 49 CFR 192, Subpart O, ASME B31.8S, and or 50 percent SMYS in Class 4 locations. Part 192. DEGT Pipeline Repair Procedures.

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• Perform external corrosion direct Authority: 49 U.S.C. 60118(c) and 49 CFR 1.6031–1 requires partnerships to file a assessment (ECDA) on the waiver sites 1.53. return. Internal Revenue Code sections of both lines. A minimum of one direct Issued in Washington, DC, on December 1, 771–777, enacted by the Taxpayer Relief examination of each line will be 2004. Act of 1997, allow large partnerships to performed. Theodore L. Willke, elect to file a simplified return which • Perform stress corrosion cracking Deputy Associate Administrator for Pipeline requires fewer items to be reported to direct assessment on any pipe exposed Safety. partners. Form 1065–B is used for this as part of the work in support of this [FR Doc. 04–26811 Filed 12–6–04; 8:45 am] purpose. waiver. BILLING CODE 4910–60–P Current Actions: There are no changes Beyond 2005— being made to the form at this time. • Perform system integrity re- Type of Review: Extension of a inspections in accordance with 49 CFR DEPARTMENT OF THE TREASURY Part 192 Subpart O requirements. currently approved collection. Affected Public: Business or other for- 4. Additional Considerations Internal Revenue Service profit organizations and farms. In an October 7 letter, the Office of Proposed Collection; Comment Estimated Number of Respondents: Pipeline Safety’s Central Region office Request for Form 1065–B and 100. requested additional information to Schedule K–1 assist in evaluation of DEGT’s waiver Estimated Time Per Respondent: AGENCY: Internal Revenue Service (IRS), request: Varies. Treasury. Information on the timing of the class Estimated Total Annual Burden location change; ACTION: Notice and request for Hours: 470,332. • comments. Information demonstrating the The following paragraph applies to all condition of the pipeline coating; SUMMARY: The Department of the of the collections of information covered • The results of depth of cover Treasury, as part of its continuing effort by this notice: surveys; to reduce paperwork and respondent • Description of any failures that An agency may not conduct or burden, invites the general public and sponsor, and a person is not required to occurred during hydrostatic testing; other Federal agencies to take this • The results of in-line inspections; respond to, a collection of information opportunity to comment on proposed unless the collection of information and and/or continuing information • Activities to address potential displays a valid OMB control number. collections, as required by the Books or records relating to a collection integrity issues associated with the Paperwork Reduction Act of 1995, hydrogen induced damage at hard spots of information must be retained as long Public Law 104–13 (44 U.S.C. as their contents may become material after the November 2, 2003, failure on 3506(c)(2)(A)). Currently, the IRS is Line 15 in Kentucky. in the administration of any internal soliciting comments concerning Form revenue law. Generally, tax returns and This letter and any responses from 1065–B, U.S. Return of Income for DEGT will be placed in the docket for tax return information are confidential, Electing Large Partnerships, and as required by 26 U.S.C. 6103. this Federal waiver request. Schedule K–1, Partner’s Share of In addition, as part of its Income (Loss) From an Electing Large Request for Comments: Comments consideration of DEGT’s waiver request, Partnership. submitted in response to this notice will RSPA/OPS will also consider the be summarized and/or included in the DATES: Written comments should be cause(s) and contributing factor(s) to the request for OMB approval. All received on or before February 7, 2005 November 2, 2003, failure of DEGT’s comments will become a matter of to be assured of consideration. Line 15 near the Owingsville public record. Comments are invited on: Compressor Station in Bath County, ADDRESSES: Direct all written comments (a) Whether the collection of Kentucky. The pipe used in Line 15 in to R. Joseph Durbula, Internal Revenue information is necessary for the proper Bath County, Kentucky and Line 15 in Service, room 6515, 1111 Constitution performance of the functions of the Scioto County, Ohio, were both Avenue NW., Washington, DC 20224. agency, including whether the manufactured by A.O. Smith and are of FOR FURTHER INFORMATION CONTACT: information shall have practical utility; the same vintage. Requests for additional information or (b) the accuracy of the agency’s estimate copies of the form and instructions of the burden of the collection of 5. Opportunity for Public Comments should be directed to Carol Savage at information; (c) ways to enhance the This notice provides an opportunity Internal Revenue Service, room 6516, quality, utility, and clarity of the for public comment on the DEGT waiver 1111 Constitution Avenue NW., information to be collected; (d) ways to proposal. Comments should address Washington, DC 20224, or at (202) 622– minimize the burden of the collection of whether or not DEGT’s proposal 3945, or through the internet at information on respondents, including complies with the criteria for [email protected]. through the use of automated collection consideration of waiver applications SUPPLEMENTARY INFORMATION: techniques or other forms of information and any other issues regarding DEGT’s Title: U.S. Return of Income for technology; and (e) estimates of capital proposed waiver. Electing Large Partnerships (Form 1065– or start-up costs and costs of operation, After the comment period has ended, B), and Partner’s Share of Income (Loss) maintenance, and purchase of services RSPA/OPS will evaluate the DEGT From an Electing Large Partnership to provide information. proposal and will consider all (Schedule K–1 (Form 1065–B)). Approved: December 2, 2004. comments received by the deadline. OMB Number: 1545–1626. R. Joseph Durbala, RSPA/OPS will publish a subsequent Form Number: Form 1065–B and Federal Register notice granting or Schedule K–1 (Form 1065–B). IRS Reports Clearance Officer. denying DEGT’s proposed waiver of Abstract: Internal Revenue Code [FR Doc. 04–26840 Filed 12–6–04; 8:45 am] § 192.611(a). Section 6031 and Regulation section BILLING CODE 4830–01–P

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DEPARTMENT OF THE TREASURY private pension benefit of the railroad is 4.4 percent of compensation. The tier retirement system. 2 tax rate for 2005 under § 3221(b) on Internal Revenue Service DATES: The tier 2 tax rates for calendar employers is 12.6 percent of year 2005 apply to compensation paid compensation. The tier 2 tax rate for Publication of the Tier 2 Tax Rates in calendar year 2005. 2005 under § 3211(b) on employee ACTION: Notice. FOR FURTHER INFORMATION CONTACT: representatives is 12.6 percent of Margaret A. Owens, compensation. SUMMARY: Publication of the tier 2 tax CC:TEGE:EOEG:ET1, Internal Revenue Dated: December 1, 2004. rates for calendar year 2005 as required Service, 1111 Constitution Avenue, by section 3241(d) of the Internal NW., Washington, DC 20224, Telephone Nancy Marks, Revenue Code (26 U.S.C. 3241). Tier 2 Number (202) 622–6040 (not a toll-free Division Counsel/Associate Chief Counsel taxes on railroad employees, employers, number). (Tax Exempt and Government Entities). and employee representatives (a group Tier 2 Tax Rates: The tier 2 tax rate [FR Doc. 04–26839 Filed 12–6–04; 8:45 am] unique to the railroad industry) fund a for 2005 under § 3201(b) on employees BILLING CODE 4830–01–P

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Corrections Federal Register Vol. 69, No. 234

Tuesday, December 7, 2004

This section of the FEDERAL REGISTER ‘‘Automotive Life Institute’’ should read November 23, 2004 make the following contains editorial corrections of previously ‘‘Automotive Lift Institute’’. correction: published Presidential, Rule, Proposed Rule, 2. In the same column, in the second and Notice documents. These corrections are full paragraph, in the fourth line, §18.53 [Corrected] prepared by the Office of the Federal ‘‘Automotive Life Institute’’ should read On page 68078, in §18.53(o)(1)(ii), Register. Agency prepared corrections are ‘‘Automotive Lift Institute’’. issued as signed documents and appear in between the two equations insert the the appropriate document categories [FR Doc. C4–25867 Filed 12–6–04; 8:45 am] paragraph ‘‘(1)(ii) Aluminum Wall/ elsewhere in the issue. BILLING CODE 1505–01–D Cover:’’. [FR Doc. C4–25891 Filed 12–6–04; 8:45 am] BILLING CODE 1505–01–D DEPARTMENT OF JUSTICE DEPARTMENT OF LABOR Antitrust Division Mine Safety and Health Administration Notice Pursuant to the National 30 CFR Part 18 Cooperative Research and Production RIN 1219–AA75 Act of 1993—Automotive Lift Institute Electric Motor-Driven Mine Equipment Correction and Accessories and High-Voltage In notice document 04–25867 Longwall Equipment Standards for appearing on page 67942 in the issue of Underground Coal Mines Monday, November 22, 2004, make the following corrections: Correction 1. In the second column, in the first In rule document 04–25891 beginning full paragraph, in the sixth line, on page 68078 in the issue of Tuesday,

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Part II

Department of Commerce Bureau of Industry and Security

15 CFR Parts 710, 711, et al. Chemical Weapons Convention Regulations; Proposed Rule

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DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: For chemical industry and other private questions of a general or regulatory entities to submit declarations, Bureau of Industry and Security nature, contact the Regulatory Policy notifications and other reports and also Division, telephone: (202) 482–2440. to provide access for on-site inspections 15 CFR Parts 710, 711, 712, 713, 714, For program information on conducted by inspectors sent by the 715, 716, 717, 718, 719, 720, 721, 722, declarations, reports, advance Organization for the Prohibition of 723, 724, 725, 726, 727, 728 and 729 notifications, chemical determinations, Chemical Weapons. Executive Order recordkeeping, inspections and facility (E.O.) 13128 delegates authority to the [Docket No. 990611158–4077–03] agreements, contact the Treaty Department of Commerce to promulgate RIN 0694–AB06 Compliance Division, Office of regulations, obtain and execute Nonproliferation and Treaty warrants, provide assistance to certain Chemical Weapons Convention Compliance, telephone: (703) 605–4400; facilities, and carry out appropriate Regulations for legal questions, contact Rochelle functions to implement the CWC, Woodard, Office of the Chief Counsel consistent with the Act. The Department AGENCY: Bureau of Industry and for Industry and Security, telephone: of Commerce implements CWC import Security, Commerce. (202) 482–5301. restrictions under the authority of the ACTION: Proposed rule and request for SUPPLEMENTARY INFORMATION: International Emergency Economic comments. Powers Act, the National Emergencies Background Act, and E.O. 12938, as amended by SUMMARY: On April 25, 1997, the United I. Summary of CWCR Changes E.O. 13128. The Departments of State States ratified the Convention on the Contained in This Proposed Rule and Commerce have implemented the Prohibition of the Development, CWC export restrictions under their On April 25, 1997, the United States Production, Stockpiling and Use of respective export control authorities. ratified the Convention on the Chemical Weapons and on Their E.O. 13128 designates the Department of Development, Production, Stockpiling Destruction, also known as the State as the United States National and Use of Chemical Weapons and on Chemical Weapons Convention (CWC or Authority (USNA) for purposes of the Their Destruction, also known as the Convention). The Bureau of Industry CWC and the Act. and Security (BIS) published an interim Chemical Weapons Convention (CWC or On December 30, 1999, the Bureau of rule, on December 30, 1999, that Convention). The CWC, which entered Industry and Security (BIS), U.S. established the Chemical Weapons into force on April 29, 1997, is an arms Department of Commerce, published an Convention Regulations (CWCR) to control treaty with significant non- interim rule that established the implement the provisions of the CWC proliferation aspects. As such, the CWC Chemical Weapons Convention affecting U.S. industry and other U.S. bans the development, production, Regulations (CWCR) (15 CFR Parts 710– persons. The CWCR include stockpiling or use of chemical weapons 722). The CWCR implemented the requirements to report certain activities, and prohibits States Parties to the CWC provisions of the CWC, affecting U.S. involving scheduled chemicals and from assisting or encouraging anyone to industry and U.S. persons, in unscheduled discrete organic chemicals, engage in a prohibited activity. The accordance with the provisions of the and to provide access for on-site CWC provides for declaration and Act. This proposed rule revises the verification by international inspectors inspection of all States Parties’ chemical CWCR by updating them to include of certain facilities and locations in the weapons and chemical weapon additional requirements identified United States. This proposed rule production facilities, and oversees the necessary for the implementation of the revises the CWCR by updating them to destruction of such weapons and CWC provisions and to clarify other include additional requirements facilities. To fulfill its arms control and CWC requirements. identified in the implementation of the non-proliferation objectives, the CWC Specifically, this rule proposes to CWC and to clarify other CWC also establishes a comprehensive make the following revisions to the requirements. verification scheme and requires the CWCR: declaration and inspection of facilities DATES: Comments on this rule must be that produce, process or consume A. Proposed Revisions to Section 710.1 received January 6, 2005. certain ‘‘scheduled’’ chemicals and of the CWCR (Definitions of Terms Used ADDRESSES: You may submit comments, unscheduled discrete organic chemicals, in the CWCR) identified by RIN 0694–AB06, by any of many of which have significant This proposed rule revises § 710.1 of the following methods: commercial applications. The CWC also the CWCR by amending the definition of • Federal eRulemaking Portal: http:// requires States Parties to report exports ‘‘domestic transfer’’ to clarify that the www.regulations.gov. Follow the and imports and to impose export and term, as applied to the declaration instructions for submitting comments. import restrictions on certain chemicals. requirements for Schedule 2 or • E-mail: [email protected]. These requirements apply to all entities Schedule 3 chemicals under the CWCR, Include ‘‘RIN 0694–AB06’’ in the under the jurisdiction and control of means the movement of a Schedule 2 or subject line of the message. States Parties, including commercial Schedule 3 chemical, in quantities and • Fax: (202) 482–3355. Please alert entities and individuals. States Parties concentrations greater than the specified the Regulatory Policy Division, by to the CWC, including the United States, thresholds in the convention, outside calling (202) 482–2440, if you are faxing have agreed to this verification scheme the geographical boundary of a facility comments. in order to provide transparency and to in the United States to another • Mail or Hand Delivery/Courier: ensure that no State Party to the CWC destination in the United States, for any Willard Fisher, U.S. Department of is engaging in prohibited activities. purpose. Commerce, Bureau of Industry and The Chemical Weapons Convention This proposed rule adds a definition Security, Regulatory Policy Division, Implementation Act of 1998 (the Act or for the term ‘‘intermediate’’ to § 710.1 of 14th Street & Pennsylvania Avenue, CWCIA) (22 U.S.C. 6701 et seq.), the CWCR in order to clarify the use of NW., Room 2705, Washington, DC enacted on October 21, 1998, authorizes that term in § 712.5(c) and Supplement 20230, ATTN: RIN 0694–AB06. the United States to require the U.S. No. 2 to part 715 of the CWCR. Section

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710.1 of the CWCR would define purification, separation, extraction, or .c, respectively, in an amount not ‘‘intermediate’’ as ‘‘a chemical formed distillation, or refining) in which the exceeding 300 grams per chemical. through chemical reaction that is chemical is not converted into another D. Proposed Amendments to subsequently reacted to form another chemical. The exact nature of any Supplement No. 1 to Part 710 of the chemical.’’ The term ‘‘intermediate’’ associated process (e.g., purification, CWCR (List of States Parties to the CWC) also clarifies its use in §§ 712.5(d), etc.) is not required to be declared.’’ 713.2(a)(2)(ii) and 714.1(a)(2)(ii), This proposed rule adds a definition This proposed rule amends whereby Schedule 1, Schedule 2 and of the term ‘‘production by synthesis’’ in Supplement No. 1 to part 710 of the Schedule 3 chemicals that are § 710.1 of the CWCR to clarify the use CWCR (States Parties to the Convention intermediates, but not transient of the term in § 715.1 of the CWCR (i.e., on The Prohibition of The Development, intermediates, must be considered when declaration of production by synthesis Production, Stockpiling, and Use of determining if a chemical is subject to of UDOCs for purposes not prohibited Chemical Weapons and on Their declaration. Lastly, Supplement No. 2 to by the CWC) and Supplement No. 2 to Destruction) by updating the list of part 715 of the CWCR, which provides part 715 of the CWCR (i.e., examples of States Parties to include the following examples of unscheduled discrete activities that are not considered to be recent additions: Afghanistan, Andorra, organic chemicals (UDOCs) and UDOC production by synthesis under part 715 Azerbaijan, Cape Verde, Chad, production, indicates that intermediate of the CWCR). Section 710.1 of the Colombia, Dominica, Eritrea, Gabon, UDOCs used in a single or multi-step CWCR would define ‘‘production by Guatemala, Jamaica, Kazakhstan, Kiribati, Kyrgyzstan, Malaysia, Marshall process to produce another declared synthesis’’ to mean ‘‘production of a Islands, Micronesia (Federated States UDOC are not subject to declaration chemical that is isolated for use or sale.’’ of), Mozambique, Nauru, Palau, requirements under the CWCR. Finally, this proposed rule amends In addition, this proposed rule adds a Rwanda, Saint Kitts and Nevis, Saint § 710.1 of the CWCR by adding a definition of the term ‘‘advance Vincent and the Grenadines, Samoa, definition of the term ‘‘transient notification’’ to § 710.1 of the CWCR to San Marino, Sao Tome and Principe, intermediate’’ in order to clarify the clarify the use of that term in part 712 Thailand, Timor Leste, Tonga, Uganda, scope of the declaration requirements of the CWCR. Section 710.1 of the United Arab Emirates, Yemen, and that apply to the production of certain CWCR would define ‘‘advance Zambia. As of June 20, 2004, 164 scheduled chemicals. Section 710.1 of notification’’ to mean ‘‘a notice countries had become States Parties to the CWCR would define the term informing BIS of a company’s intention the CWC. to export to or import from a State Party ‘‘transient intermediate’’ to mean ‘‘any chemical that is produced in a chemical E. Proposed Amendments to Part 711 of a Schedule 1 chemical.’’ Advance the CWCR (General Information notifications must be submitted to BIS process, but that only exists for a very short period of time and cannot be Regarding Declaration, Reporting and at least 45 days prior to the proposed Advance Notification Requirements) export or import, except for exports or isolated, even by modifying or imports of saxitoxin for medical/ dismantling the plant, altering the This proposed rule adds a new § 711.3 diagnostic purposes which may be chemical production process operating that establishes BIS’s authority to submitted to BIS at least 3 days prior to conditions, or stopping the chemical contact any company to determine export or import. The definition production process altogether.’’ whether it is in compliance with the proposed by this rule also indicates that B. Proposed Amendments to Section CWCR. Information requested may this notification requirement is in 710.2 of the CWCR (Scope of the CWCR) relate to the production, processing, addition to any export license consumption, export, import, or other requirement under the Export This proposed rule amends § 710.2(a) activities involving scheduled Administration Regulations (EAR) (15 of the CWCR by removing the phrase chemicals and UDOCs described in CFR Parts 730–799) or the International ‘‘The CWCR declaration, reporting, and Parts 712 through 715 of this Traffic in Arms Regulations (ITAR) (22 inspection requirements apply ....’’ subchapter. Any person or facility CFR Parts 120–130), or import license from that paragraph. Removal of this subject to the CWCR and receiving such requirement under the Alcohol, phrase will clarify which persons and a request for information will be Tobacco, Firearms and Explosives facilities are generally subject to the required to provide a response to BIS Regulations (27 CFR part 447). provisions of the CWCR. within the time-frame specified in the The definition of the term C. Proposed Amendments to Section request. However, this requirement does ‘‘production’’ in § 710.1 of the CWCR is 710.6 of the CWCR (Relationship not, in itself, impose a requirement to revised by adding certain notes that Between the CWCR and the Export create new records or maintain existing incorporate decisions by the Administration Regulations) records. Organization for the Prohibition of This proposed rule amends § 711.3 of Chemical Weapons’ Conference of the This proposed rule amends § 710.6 of the CWCR by moving it to § 711.4 and States Parties (OPCW/CSP) regarding the CWCR to include a reference to specifying a time period within which the production of Schedule 1, 2, and 3 Export Control Classification Number the BIS will respond to chemical chemicals. The first note would clarify (ECCN) 1C395 on the Commerce Control determination requests. BIS will that the production of Schedule 1 List (CCL), which is in Supplement No. respond, in writing, to a chemical chemicals includes ‘‘formation through 1 to part 774 of the EAR. ECCN 1C395 determination request within 10 chemical synthesis as well as processing controls the following items: (i) working days of receipt of the request. to extract and isolate Schedule 1 Mixtures that contain more than 10 This proposed rule removes the chemicals.’’ The second note would percent, but less than 30 percent, by declaration and reporting requirements clarify that the ‘‘production’’ of a weight of any single CWC Schedule 2 in § 711.4 of the CWCR concerning Schedule 2 or Schedule 3 chemical chemical identified in ECCN 1C350.b; activities that occurred prior to ‘‘means all steps in the production of a and (ii) certain medical, analytical, December 30, 1999, since these chemical in any units within the same diagnostic and food testing kits that requirements should already have been plant through chemical reaction, contain CWC Schedule 2 or Schedule 3 satisfied. A new § 711.7 is proposed to including any associated processes (e.g., chemicals controlled by ECCN 1C350.b provide information on where to submit

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declarations, advance notifications, and is changed from August 3 to September reports that were returned without reports. 3 thereby giving Schedule 1 facilities an action. New § 711.8 is added with additional 30 days in which to complete Finally, the provisions in § 712.6 and instructions for applying for and submit their declarations. Table 1 to § 712.6 of the CWCR, which authorization to submit electronic This proposed rule amends the CWCR contain information on the deadlines for declarations and reports in order to provisions that require advance submitting Schedule 1 declarations, fulfill requirements under the notification of exports and imports of reports, advance notifications and Government Paperwork Elimination Act Schedule 1 chemicals by establishing an amendments to BIS, are updated and (44 U.S.C. 3504). exception to the requirement that BIS moved to § 712.9 and Supplement No. 2 must be notified at least 45 calendar to part 712 of the CWCR, respectively. F. Proposed Amendments to Part 712 of days prior to the export or import of a the CWCR (Activities Involving G. Proposed Amendments to Part 713 of Schedule 1 chemical to or from another Schedule 1 Chemicals) the CWCR (Activities Involving State Party. Advance notification of the Schedule 2 Chemicals) This proposed rule adds a new export or import of 5 milligrams or less § 712.2(a) that prohibits production of of Saxitoxin–B (7), which is listed in This proposed rule adds a prohibition Schedule 1 chemicals for protective Supplement No. 1 to part 712 of the against exports of Schedule 2 chemicals purposes. CWCR, for medical or diagnostic to States not Party to the CWC in This proposed rule clarifies that purposes only, would have to be § 713.1(a). Currently, the CWCR prohibit initial declarations submitted in submitted to BIS at least 3 calendar days imports of Schedule 2 chemicals from February 2000 remain valid until they (rather than 45 calendar days) prior to States not Party to the CWC, but do not are either amended or rescinded. If you the date of export or import. prohibit Schedule 2 chemical exports to plan to alter the technical layout of your This proposed rule amends the CWCR such countries. However, note that declared facility, you must submit an provisions concerning requirements for § 742.18 of the EAR currently requires a amended declaration to BIS at least 200 amending Schedule 1 declarations and license for exports of Schedule 2 calendar days prior to making any such reports. Section 712.7 of the CWCR is chemicals to States not Party to the change to your facility. proposed to be amended by clarifying CWC and BIS applies a general policy This proposed rule revises § 712.3 of and specifying deadlines for: (i) The of denial to license applications for such the CWCR by moving the annual types of changes to information on exports. A license is also required for declaration requirements for Schedule 1 Schedule 1 chemicals and activities in export of Schedule 2 chemicals facilities to new § 712.5. the Annual Declaration of Past controlled under the ITAR. This proposed rule amends § 712.4 of Activities that would require This proposed rule revises § 713.1(b), the CWCR to clarify the declaration submission of an amended declaration which exempts certain mixtures requirements that apply to the to BIS; (ii) the types of changes to export containing Schedule 2 chemicals from establishment of new Schedule 1 or import information in the Annual the export and import prohibitions chemical production facilities. If a Reports on Exports and Imports from contained in § 713.1(a) of the CWCR, as Schedule 1 chemical production facility undeclared facilities, trading companies proposed by this rule. Currently, has never been declared in a previous and U.S. persons that would require § 713.1(b) of the CWCR exempts calendar year or its initial declaration submission of an amended report to BIS; mixtures containing 10 percent or less, has been withdrawn in accordance with and (iii) the types of changes to by weight, of any single Schedule 2 the requirements of amended § 712.5(f) Schedule 1 chemical facility chemical. This rule revises § 713.1(b) of of this proposed rule, you must submit information (e.g., change in company the CWCR to exempt the following an initial declaration (including a name, address, declaration point of mixtures: (i) Mixtures containing 1 current detailed technical description of contact, ownership) that would require percent or less, by weight, of any single the facility) to BIS at least 200 calendar submission of an amended declaration Schedule 2A or 2A* chemical; days prior to commencing production of or report to BIS. In addition, this (ii) mixtures containing 10 percent or Schedule 1 chemicals at the facility in proposed rule adds a new § 712.7(d) to less, by weight, of any single Schedule quantities greater than 100 grams the CWCR that will provide guidance 2B chemical; and (iii) products aggregate per year. Such facilities are concerning the submission of identified as consumer goods packaged considered to be ‘‘new Schedule 1 inspection-related amendments. for retail sale for personal use or chemical production facilities’’ and are Amended declarations, based on the packaged for individual use. However, subject to an initial inspection within final inspection report, would have to note that the consumer goods exemption 200 calendar days of the submission of be submitted to BIS within 45 calendar for mixtures that contain Schedule 2 the initial declaration to BIS. days of the date of BIS’s post inspection chemicals identified under ECCN 1C350 This proposed rule revises the letter. on the CCL (Supplement No. 1 to part remainder of part 712 of the CWCR, as This proposed rule adds a new § 712.8 774 of the EAR) applies only to products follows: (1) Advance notification and to the CWCR that provides guidance identified as consumer goods not annual report requirements for Schedule concerning certain Schedule 1 packaged for retail sale for personal use 1 chemical exports and imports are declarations and reports that are and not to products packaged for proposed to be moved from § 712.5 of returned without action. In these cases, individual use (the latter are exempt the CWCR to § 712.6; (2) provisions for BIS would return without action (RWA) only by the CWCR and not by the Table 1 to § 712.6 of the CWCR are any Schedule 1 declarations or reports Australia Group controls under the proposed to be moved to new that are determined to be not required EAR). Supplement No. 2 to part 712 of the by the CWCR. The returned declaration In addition, this proposed rule: (i) CWCR; (3) procedures concerning or report would be accompanied by a Removes the provisions concerning declarations and reports returned cover letter explaining why the declarations on past production of without action by BIS are proposed to declaration or report is being returned Schedule 2 chemicals for chemical be described in new § 712.8 of the without action. BIS would retain a copy weapons purposes (currently found in CWCR; and (4) the due date for Annual of the RWA letter, but would not § 713.2 of the CWCR); (ii) removes the Declarations for Anticipated Activities maintain copies of any declarations or provisions currently found in

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§§ 713.3(a)(1)(i) and 713.4(c)(1) and (2) days of the date of BIS’s post inspection range of Schedule 3 chemical on Schedule 2 initial declarations and letter. production for your plant site during the initial reports on exports and imports; This proposed rule adds § 713.6 of the previous calendar year. Specifically, (iii) amends the provisions providing CWCR to provide guidance concerning this rule proposes to include a statement guidance concerning amendments to the return of certain Schedule 2 in § 714.1(c)(1) of the CWCR to indicate declarations and reports (currently declarations and reports without action. that you should not aggregate amounts found in § 713.7 of the CWCR); (iv) BIS would RWA any Schedule 2 of production from plants on your plant moves the provisions concerning the declarations or reports that are site that did not individually produce a frequency and timing of declarations determined not required by the CWCR. Schedule 3 chemical in an amount and reports (currently found in § 713.6 The returned declaration or report exceeding the applicable declaration of the CWCR) to § 713.7; and (v) would be accompanied by a cover letter threshold (i.e., greater than 30 metric provides a description of the procedures explaining why the declaration or report tons). In short, only the production that BIS will follow concerning is being returned without action. BIS amounts from those plants on your declarations and reports RWA’d in would retain a copy of the RWA letter, plant site that individually produced § 713.6 of the CWCR. but would not maintain copies of any greater than 30 metric tons of a This proposed rule moves and revises declarations or reports that were Schedule 3 chemical should be § 713.3 of the CWCR to § 713.2 to clarify returned without action. aggregated for the purpose of calculating the scope of Schedule 2 production Finally, the provisions in § 713.6 and the total amount of a Schedule 3 activities to include any associated Table 1 to § 713.6 of the CWCR, which chemical produced at your plant site processing steps of the Schedule 2 contain information on the deadlines for during the previous calendar year. chemical and intermediates. Only submitting Schedule 2 declarations, The CWCR provisions on amended transient intermediates are exempted. reports, and amendments to BIS, are declarations and reports for Schedule 3 updated and moved to § 713.7 and This will ensure that the CWCR chemicals are proposed to be moved Supplement No. 2 to part 713 of the requirements will apply to Schedule 2 from § 714.6 of the CWCR to § 714.4 and CWCR, respectively. chemical production where Schedule 2 amended by clarifying and specifying chemicals are below the applicable H. Proposed Amendments to Part 714 of deadlines for: (i) The types of changes concentration threshold when reacted, the CWCR (Activities Involving to information on Schedule 3 chemicals but subsequently are concentrated above Schedule 3 Chemicals) and activities in the Annual Declaration the threshold during in-line processing. of Past Activities or the combined The provisions in § 713.6 and Table 1 This proposed rule amends part 714 declaration and report that would to § 713.6 of the CWCR, which contain of the CWCR by removing certain require submission of an amended information on the deadlines for provisions concerning the past submitting declarations, reports, production of Schedule 3 chemicals in declaration to BIS; (ii) the types of advance notifications, and amendments § 714.1. The requirements concerning changes to export or import information to BIS, are proposed to be moved to when and how to amend declarations in the Annual Reports on Exports and § 713.7 and Supplement No. 2 to part and reports for Schedule 3 chemicals, Imports from undeclared facilities, 713 of the CWCR, respectively. In currently in § 714.6 of the CWCR, are trading companies and U.S. persons that addition, the CWCR provisions on proposed to be revised by this rule and would require submission of an amended declarations and reports for moved to § 714.4. This rule also amended report to BIS; and (iii) the Schedule 2 chemicals are proposed to proposes to revise § 714.5 of the CWCR, types of changes to Schedule 3 chemical be moved from § 713.7 of the CWCR to which currently addresses the frequency facility information (e.g., change in § 713.5 and amended by clarifying and and timing of Schedule 3 declarations, company name, address, declaration specifying deadlines for: (i) The types of to describe the BIS procedures for point of contact, ownership) that would changes to information on Schedule 2 returning declarations and reports require submission of an amended chemicals and activities in the Annual without action. Section 714.5 is declaration or report to BIS. In addition, Declaration of Past Activities or the proposed to be moved to new § 714.6 this proposed rule amends the CWCR to combined declaration and report that and revised to address deadlines for provide guidance in § 714.4(d) would require submission of an submitting Schedule 3 declarations, concerning the submission of amended declaration to BIS; (ii) the reports, and amendments. inspection-related amendments. types of changes to export or import Section 714.2 of the CWCR, as Amended declarations, based on the information in the Annual Reports on proposed to be moved to new § 714.1 by final inspection report, would have to Exports and Imports from undeclared this rule, will clarify the scope of be submitted to BIS within 45 calendar facilities, trading companies and U.S. Schedule 3 production activities, as days of the date of BIS’s post inspection persons that would require submission defined by the CWCR, to include any letter. of an amended report to BIS; and (iii) associated processing steps of a This proposed rule revises adds the types of changes to Schedule 2 Schedule 3 chemical and intermediates. § 714.5 of the CWCR to provide chemical facility information (e.g., Only transient intermediates are guidance concerning the return of change in company name, address, exempted. This will ensure that the certain Schedule 3 declarations and declaration point of contact, ownership) CWCR requirements will apply to reports without action. BIS would RWA that would require submission of an Schedule 3 chemical production where any Schedule 3 declarations or reports amended declaration or report to BIS. In Schedule 3 chemicals are below the that are determined not required by the addition, this proposed rule moves and applicable concentration threshold CWCR. The returned declaration or revises § 713.6(d) of the CWCR to when reacted, but subsequently are report would be accompanied by a cover § 713.5(d) to provide guidance concentrated above the threshold during letter explaining why the declaration or concerning the submission of processing. report is being returned without action. inspection-related amendments. In addition, this proposed rule moves BIS would retain a copy of the RWA Amended declarations, based on the and revises § 714.2 of the CWCR to letter, but would not maintain copies of final inspection report, would have to § 714.1 to clarify the procedures that any declarations or reports that were be submitted to BIS within 45 calendar must be followed when determining the returned without action.

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Finally, the provisions in § 714.5 and Activities that would require the facilities or plants producing Table 1 to § 714.5 of the CWCR, which submission of an amended declaration scheduled chemicals, in order to contain information on the deadlines for to BIS; and (ii) the types of changes to address any ambiguity that might arise submitting Schedule 3 declarations, UDOC plant information (e.g., change in during the inspection. In addition, reports, and amendments to BIS, are company name, address, declaration photographs may be taken and formal proposed to be updated and moved to point of contact, ownership) that would interviews of facility personnel may be § 714.6 and Supplement No. 2 to part require submission of an amended conducted. 714 of the CWCR, respectively. declaration to BIS. In addition, this Section 716.4(b)(3) of the CWCR is proposed rule amends the CWCR to amended to indicate that: (i) Technology I. Proposed Amendments to Part 715 of provide guidance in § 715.2(c) subject to the ITAR shall not be the CWCR (Activities Involving concerning the submission of divulged to the Inspection Team Unscheduled Discrete Organic inspection-related amendments. without U.S. Government authorization; Chemicals (UDOCs)) Amended declarations, based on the and (ii) each facility that is inspected is This proposed rule amends final inspection report, would have to responsible for identifying ITAR- § 715.1(a)(1)(ii) (which describes the be submitted to BIS within 45 calendar controlled technology to the BIS Host annual declaration requirements for the days of the receipt of BIS’s post Team, if known. production of UDOCs containing the inspection letter. This proposed rule also clarifies the elements phosphorus, sulfur or fluorine, This proposed rule adds § 715.3 of the pre-inspection briefing requirements referred to as ‘‘PSF-chemicals’’) to CWCR to provide guidance concerning described in § 716.4(c) of the CWCR and clarify how to calculate the production the return of certain UDOC declarations the requirements in § 716.4(e) of the by synthesis of PSF chemicals at your without action. BIS would RWA any CWCR concerning the availability of plant site during the previous calendar UDOC declarations that are determined records. The U.S. facility must provide year. Specifically, this proposed rule not required by the CWCR. The returned the Inspection Team and the U.S. indicates that when determining the declaration would be accompanied by a Government Host Team with quantity of each PSF-chemical produced cover letter explaining why the appropriate accommodations in which by a PSF plant on your plant site, you declaration is being returned without to review relevant documents and must should only aggregate the PSF chemical action. BIS would retain a copy of the ensure that all relevant information will production quantities from plants that RWA letter, but would not maintain be available to the teams. In addition, individually produced a PSF chemical copies of any declarations that were this rule provides that, whenever a in an amount exceeding 30 metric tons. returned without action. facility does not have access to records However, note that § 715.1(a)(1)(i) Finally, the provisions in the CWCR for activities that took place under a indicates that when determining UDOC that currently contain information on previous ownership, the previous owner production by synthesis on your plant the deadlines for submitting UDOC must make such records available to the site, you should aggregate all quantities declarations and amendments to BIS Host Team (for provision to the of UDOCs and PSF-chemicals produced (§ 715.2 and Table 1 to § 715.2), are Inspection Team). regardless of the amount of PSF proposed to be updated and moved to Section 716.7 of the CWCR, which chemicals produced (i.e., aggregate any § 715.4 and Supplement No. 3 to part describes requirements concerning the PSF chemicals produced). 715 of the CWCR, respectively. provision of samples by declared This proposed rule also revises facilities, is revised to restrict the § 715.1(b)(1) of the CWCR by removing J. Proposed Amendments to Part 716 of analysis of such samples to the the initial declaration requirement and the CWCR (Initial and Routine verification of the absence of undeclared replacing it with the annual declaration Inspections of Declared Facilities) scheduled chemicals, unless otherwise requirement, and adding a new As part of their obligation under the agreed after consultation with the subsection that creates a new form Convention, each State Party to the facility representative. called the ‘‘No Changes Authorization’’ CWC is subject to inspection of its Finally, this proposed rule adds a new form that may be submitted to BIS if chemical facilities engaged in certain § 716.10 to clarify that, upon receipt of there are no updates or changes to any activities involving scheduled the final inspection report from the information (other than the certifying chemicals. Part 716 of the CWCR OPCW, BIS will send a copy of the final official and dates signed and submitted) provides general information about the inspection report to the facility for its contained in the annual declaration on conduct of initial and routine review. Facilities may submit comments past activities previously submitted by inspections of declared facilities subject on the final inspection report to BIS, your plant site. In addition, to inspection under CWC Verification and BIS will consider those comments, § 715.1(b)(1)(ii) of the CWCR, as Annex Part VI(E), Part VII(B), Part to the extent possible, when proposed by this rule, would include a VIII(B), and Part IX(B). commenting on the final report. BIS will statement indicating that your plant This proposed rule amends also send facilities a post-inspection site’s UDOC activities would continue § 716.2(a)(2)(i) of the CWCR to clarify letter with instructions based on to be declared to the OPCW and that that a facility agreement will be decisions made during the inspection. your plant site would remain subject to concluded by the U.S. National inspection (if applicable) based upon Authority (in coordination with BIS) K. Proposed Amendments to Part 717 of the data reported in your previous (i.e., with the OPCW before a new Schedule the CWCR (Clarification of Possible most recent) annual declaration on past 1 facility, declared pursuant to § 712.4 Non-Compliance With the Convention; activities. of the CWCR, can produce above Challenge Inspection Procedures) The CWCR provisions on amended threshold. Article IX of the CWC contains declarations for UDOCs are moved from This proposed rule amends procedures for States Parties to clarify § 715.3 of the CWCR to § 715.2 and § 716.4(b)(1) of the CWCR to clarify the issues concerning compliance with the revised by clarifying and specifying scope of inspections by specifying that CWC. A State Party may request the deadlines for: (i) The types of changes inspections under part 716 of the CWCR OPCW to conduct an on-site challenge to information on UDOCs and activities may include visual inspection of parts inspection of any facility or location in in the Annual Declaration of Past or areas of the plant site, in addition to the territory or in any other place under

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the jurisdiction or control of any other II. Summary of Public Comments on the B. Supplement No. 1 to Part 710—States State Party. A challenge inspection may December 30, 1999, Interim CWCR Rule Parties to the Convention be conducted solely for the purpose of Comment: One respondent is clarifying and resolving any questions On December 30, 1999, the Bureau of Industry and Security (BIS) published concerned that, unlike Hong Kong, concerning possible non-compliance which was identified as part of China, with the CWC. an interim rule in the Federal Register (64 FR 73744), with a request for Taiwan’s status has not been resolved. This proposed rule amends § 717.1(b) Due to the volume of legitimate trade comments, establishing the Chemical of the CWCR to clarify that BIS will (imports/exports) that occurs with Weapons Convention Regulations attempt to contact a person or facility Taiwan, the respondent believes (CWCR) to implement provisions of the that is subject to the Article IX Taiwan’s status should be resolved and clarification procedures as early as Chemical Weapons Convention (CWC) communicated. The respondent practical prior to the issuance of an and the Chemical Weapons Convention commented on this issue on the official written request for clarification Implementation Act of 1998 (the Act or proposed rule, but BIS had not and that such person or facility must CWCIA) (22 U.S.C. 6701 et seq.), which previously responded to this comment. provide the information required by was enacted on October 21, 1998. BIS Response: BIS responded to this BIS, pursuant to an Article IX received comments from five respondent’s concern in the interim- clarification request, within five respondents. Following is a summary of final rule dated December 30, 1999, working days of the receipt of BIS’s those comments, along with BIS’s under Section III Public Comments on written request for clarification. responses. Declarations and Reporting Forms and In addition, this proposed rule A. Preamble to the December 30, 1999, Handbooks. Supplement 3 to the amends § 717.2 (Challenge Inspections) Interim CWCR Rule Declaration and Report Handbook was by adding a new provision in changed to add a new Destination Code § 717.2(b)(2)(ii) explaining that if Comment: One respondent is ‘‘TAI’’ for Taiwan for declaring or consent is not granted within four hours concerned about the statement in 64 FR reporting exports to or imports from of a facility’s receipt of BIS’s inspection 73754, Part II (Public Comments on the Taiwan of Schedule 2 or Schedule 3 notification, BIS will assist the Proposed Rule) of the preamble stating chemicals. Schedule 2 chemicals may Department of Justice in seeking a that ‘‘the United States cannot withhold no longer be exported to or imported criminal warrant. A new provision, conclusion of a facility agreement with from Taiwan, which is not a State Party. § 717.2(d)(5), also has been added that the OPCW because of facility concerns.’’ Schedule 3 chemicals require an End- describes the requirements concerning The respondent suggests: (1) Because Use Certificate for exports to Taiwan or pre-inspection briefings for challenge facility agreements are not required for a license is required. Additionally, inspections. Section 717.2(d)(5) will Schedule 3 or unscheduled discrete Supplement 3 to the Declaration and require that, prior to the commencement organic chemical (UDOC) facilities, the Report Handbook indicates that transfers to Taiwan do not imply of the challenge inspection, facility United States could withhold recognition of the Taiwan authorities or representatives must provide the conclusion of a facility agreement for an official relationship with Taiwan. Inspection Team and Host Team with a such a facility because of facility pre-inspection briefing on the facility concerns; (2) in the case of Schedule 1 C. Part 711—General Information that will include the following: (i) The or 2 facilities, the facility’s legitimate Regarding Declaration, Reporting and types of activities being conducted at concerns would become the U.S. Advance Notification Requirements the facility (e.g., business and Government’s concerns; and (3) that manufacturing operations); (ii) safety Comment: Two respondents suggest these issues be addressed in the procedures that must be followed that a new section (§ 711.7) be added to preamble. during the inspection; and (iii) the final rule to specify the department administrative and logistical Response: The CWC does not provide and address for submittal of completed arrangements necessary to facilitate the for facility approval of the facility declarations and reports. Additionally, inspection. agreement for any facility agreement each declaration and report handbook concluded between the United States should provide the same information in Section 717.3 of the CWCR, which the ‘‘Introduction’’ section, and each describes requirements concerning the and Organization for the Prohibition of Chemical Weapons (OPCW). This declaration and report form should provision of samples by declared contain the information on where such facilities, is revised to restrict analysis includes facility agreements for Schedule 3 and UDOC facilities. form should be submitted. of samples to verifying the presence or Response: BIS created a new § 711.7 absence of scheduled chemicals or Although Schedule 3 and UDOC facility agreements will only be pursued at the which provides the mailing address to appropriate degradation products, which declarations and reports must be unless agreed otherwise. facility’s request, the same negotiating procedures will apply as with Schedule submitted. BIS also updated the Finally, this proposed rule adds a new 1 and 2 facility agreements. Declaration and Report Handbook to § 717.5 to clarify that, upon receipt of include the applicable mailing address. the final inspection report from the The U.S. Government will provide OPCW, BIS will forward a copy to the facilities the opportunity to express D. Sections 712.6, 713.7 and 714.6— facility, for comment, and will give concerns at several stages throughout Amended Declarations consideration to the facility’s comments the facility agreement process. However, Comment: Three respondents request prior to responding to the OPCW via the as the facility agreement and inspection that BIS eliminate the requirement for U.S. National Authority. In addition, process is a U.S. government-led an amended declaration for minor proposed § 717.5 will provide that, enterprise, it will ultimately be the changes, such as a change in company upon receipt of the final inspection decision of the U.S. Government name. The respondents assert that a report, BIS will send the facility a post whether to include reference to facility change in company name is not inspection letter detailing the issues that concerns and comments in the facility substantive and has no impact on CWC require follow-up action. agreement. verification activities, the object and

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purpose of the CWC and/or plant site requirements for annual declarations on on Form 2–3, on actual past exports. identification code, and results in a past activities involving Schedule 2 The forms required for submitting a paperwork burden. chemicals. Specifically, the note to Declaration on Additionally Planned Response: See BIS’s response to the § 713.3(a)(1)(ii) creates confusion by Activities are identified in the new following comment. basing the annual declaration Supplement 2 to part 713 of the CWCR. Comment: One respondent requests requirement on three years of activity that deadlines be provided for and conflicts with the CWC’s and the G. Sections 714.2 and 715.1—Annual submission of amended declarations. CWCIA’s time frame for annual Declaration Requirements Currently the regulations only require declarations. Moreover, the CWCIA and Comment: One respondent suggests that companies submit amended CWC require annual declarations for a declarations. Given that accurate single year and not a series of years as that in some portions of the regulations declarations are important for on-site presented in the note to § 713.3(a)(1)(ii). it is not clear whether facilities are verification, the respondent contends Since Section 401 of the CWCIA expected to aggregate quantities of that amendments should be submitted commits the U.S. government to require chemicals among all the plants at the within 90 days of the event that only the minimal information necessary same plant site or whether each plant triggered a requirement for an amended to satisfy the requirements of the CWC should be considered individually. This declaration, the same amount of time and the CWCIA, these respondents respondent proposes revisions to given for annual declarations following oppose a three-year time frame for §§ 714.2(a)(l)(i) and (ii), 714.2(b)(l), (2), the close of a calendar year. purposes of reporting on annual and (3), and 715.1(a)(l)(ii) that use the Response: Based upon the experience activities. model in § 713.3(c)(1)(i) (‘‘Do not gained in implementing the CWC, BIS Response: BIS is upholding the aggregate amounts of production, has determined that certain amended CWCIA’s commitment to require only processing or consumption among information is necessary to assist in the minimum information necessary to plants on the plant site that did not timely processing of inspection satisfy the requirements of the treaty. individually produce, process or notifications and in effective The CWCR only require an annual consume a Schedule 2 chemical in communication with company Schedule 2 declaration on past activities amounts greater than the applicable personnel subject to inspection. As for the previous calendar year. This threshold’’). currently written, the CWCR do not declaration requirement is based upon adequately explain the amendment the activities that occurred at the plant Response: The model paragraph procedures required of companies, or site during ‘‘any of the previous three identified by the respondent, new the reasons why BIS requires that calendar years’’ as provided in the note § 713.2(c)(1)(i) (previously information. Accordingly, BIS has to § 713.2(a)(1)(i)(B). BIS refers to this § 713.3(c)(1)(i)), provides the specific clarified the requirements and timelines CWC requirement as the ‘‘three-year requirements for ‘‘quantities to be for submitting amended declarations. lookback.’’ declared’’ in a Schedule 2 declaration BIS has established different timelines by determining if a Schedule 2 plant’s for submitting an amendment based F. Section 713.5—Advance Declaration activities must be aggregated with the upon the type of change that is being Requirements for Additionally Planned quantities of other plants’ activities that Production, Processing, or Consumption made to a declaration and the time it may have exceeded the specific of Schedule 2 Chemicals will take for BIS to receive and process declaration threshold. Similarly, data in order to submit relevant changes Comment: One respondent notes that § 714.1(c)(1) (previously § 714.2(c)(1)) to the OPCW. Any company changes to this section states that facilities are provides the same requirements for declaration or report information allowed, but not required, to submit an ‘‘quantities to be declared’’ for a dealing with the chemicals, quantities, amended declaration if they are merely Schedule 3 plant thereby requiring that activities, end-use purposes, additions, listing additional countries for export. ‘‘* * * you must aggregate the deletions, or similar changes that are However, then the section goes on to production quantities of all plants on submitted, via the U.S. National state ‘‘not to exceed 10 countries.’’ The the plant site that produced the respondent proposes that these Authority, to the OPCW must be Schedule 3 chemical in amounts greater provisions be clarified, perhaps in the received by BIS within 15 days of the than 30 metric tons.’’ For purposes of preamble, to state whether this means a change in information. Changes to clarity, however, BIS has added the limit of ten additional countries or ten internal company information that is following sentence to § 714.1(c)(1), not submitted to the OPCW, such as a total countries, and how this which states: ‘‘Do not aggregate amounts declaration or inspection point of amendment should be done. of production from plants on the plant contact, telephone numbers, or changes Response: New § 713.4 (previously site that did not individually produce a in company ownership, must be § 713.5) requires submission of a Schedule 3 chemical in amounts greater received by BIS within 30 days of the Declaration on Additionally Planned than 30 metric tons.’’ BIS also has change to the information. Additionally, Activities if any additional activity is amendments required based upon an planned after submission of the Annual clarified the requirements for inspection finding must be submitted to Declaration on Anticipated Activities. unscheduled discrete organic chemicals BIS within 45 days after the company is This requirement is not an amendment, in a note to § 715.1(a)(1)(ii) to state: ‘‘In notified of the required amendments. but rather is a specific type of calculating the aggregate production Finally, in lieu of submitting an declaration that must be submitted to quantity of each individual PSF amended declaration or report form, you the OPCW. Section 713.4 has been chemical produced by a PSF plant, do may submit your amended information changed in this proposed rule to not include production of a PSF to BIS in a letter on company letterhead. eliminate the limit on the total number chemical that was produced in of destinations that may be declared in quantities less than 30 metric tons. E. Section 713.3—Annual Declaration both the Annual Declaration on Include only production quantities from Requirements for Schedule 2 Plant Sites Anticipated Activities and the those PSF plants that produced more Comment: Two respondents state that Declaration on Additionally Planned than 30 metric tons of an individual PSF the interim rule is unclear on the Activities, as well as for question 2–3.7, chemical.’’

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H. Section 715.1—Annual Declaration products other than those intended for therefore no further regulation Requirements for Unscheduled Discrete consumption by humans and animals. amendment is required. BIS does not Organic Chemicals (UDOCs) BIS has determined that only see any need to further define who may Comment: Two respondents interpret undifferentiated edible oils that are not withhold consent. the exemption of UDOCs produced by discrete organic chemicals are exempt Comment: One respondent synthesis that are ingredients or from the requirements of part 715 of the acknowledges that, if time passes byproducts in foods and are designed CWCR. Discrete organic chemicals are without a facility expressing consent to for consumption by humans and/or defined in part 710 of the CWCR. an inspection, eventually BIS will need animals to include dietary supplements, Comment: One respondent suggests to make preparations for a warrant. as defined under Section 201 of the that the language for the exemption for However, there may be times when the facility voices its consent after BIS has Federal Food, Drug and Cosmetic Act polymers and oligomers in initiated those preparations. BIS should (FFDCA), 21 U.S.C. Section 321. One § 715.1(a)(2)(ii)(A) is confusing and that clarify that it will not continue to seek respondent encouraged BIS to reference it need only say, ‘‘Polymers and (or serve) a warrant if the facility has the FFDCA in interpreting oligomers consisting of two or more consented to inspection and has not § 715.1(a)(2)(ii)(E). Additionally, in repeating units.’’ withdrawn its consent. The respondent response to BIS’s request for public Response: BIS agrees with the suggests that this clarification does not comment on the impact of the CWCR on recommendation and has changed require any change to the wording of the facilities that produce UDOCs solely as 715.1(a)(2)(ii)(A) accordingly. BIS notes, regulations, but it would be sufficient to consumer goods packaged for retail sale, however, that this change does not have provide a response to the public two respondents recommend that BIS any impact on those polymers and oligomers that are exempted. comment in the preamble of the final exempt facilities that process edible oils regulations. and edible oil byproducts solely for use I. Section 716.1—General Information Response: Whether BIS follows in packaged consumer goods other than on the Conduct of Initial and Routine through with a warrant exercise is those intended for consumption by Inspections dependent upon at which stage a facility humans or animals, such as soaps, Comment: One respondent suggests consents after not having consented to shampoos, detergents and consumer that the list of responsibilities of BIS an inspection. If, for example, a facility personal care products. Respondents during inspections include: Assisting in has not consented and BIS initiates the argue that the concentration, the protection of confidential business warrant process, and is before a distribution and reaction of these information; consultation with facility magistrate to obtain the warrant when a constituents vary from lot to lot, representatives regarding facility facility consents, it is highly likely that resulting in an unnecessary and costly concerns; serving as intermediary at that stage, BIS will obtain the warrant analysis of mixtures made in-house between the facility and the Inspection and the inspection will be continued expressly for incorporation into Team; and representing the interests of under its terms. In certain instances, it consumer products. Respondents argue the facility, where appropriate. may be more efficient for BIS to follow that reporting of basic processing of Response: Part 716.1 is purposefully through with obtaining a warrant, and edible oils operations is not consistent broad to allow for accommodation of the therefore, such circumstances will be with the intent and purposes of the needs of the U.S. Government, the reviewed on a case by case basis. CWC. Edible oils are not discrete Inspection Team, and the facility during Comment: One respondent states that chemical entities and trying to ‘‘force- inspections. the requirement that the person who fit’’ them into the CWC’s definition of gives consent to an inspection UDOCs creates additional workplace J. Section 716.3—Consent to ‘‘represents that he or she has authority burdens on facility personnel and forces Inspections; Warrants for Inspections to make this decision for the facility’’ changes in plant equipment and Comment: One respondent states that serves no purpose and proposes that the operations. Given the noticeable the interim rule fails to expressly applicable Declaration and/or Reporting absence of any direct threat to the object incorporate the following language from forms have a place to designate (by and purpose of the Convention, these the CWCIA: ‘‘The owner or the operator, name or job title) persons who are respondents recommend that BIS adopt occupant, or agent in charge of the authorized to consent to inspections. an exemption for facilities involved premises to be inspected may withhold Response: As with a declaration made exclusively in the processing of consent for any reason or no reason.’’ In to BIS pursuant to the CWCR, an indiscrete edible oils for use in comments to the interim rule, as agreement to consent must be an official packaged consumer products. They captured in the preamble (64 FR 73755), decision from the facility. Sections argue in favor of a similar exemption for it was suggested that this be 304(b) and 305(a) of the CWCIA require facilities which conduct acid-base incorporated in § 716.3. that the owner, operator, occupant, or reactions as a normal consumer product Response: The facility’s right to agent in charge of a facility be sent the formulation. This type of reaction is withhold consent is included in the notice of an inspection, and advise the pervasive in product formulation, is general reference to the CWCIA in U.S. Government of whether the facility formulation specific, and is not 716.3(b). consents to the inspection. It is for that currently quantified by most Comment: Further, this respondent reason that BIS requires that consent be manufacturers. Therefore, according to states that the interim rule should be made by a person with authority to respondents, quantifying this type of amended to state that the owner, speak on behalf of the company. In reaction would be technically difficult, occupant, or agent in charge of the practice, BIS sends a written notice of costly and provide little information premises to be inspected may withdraw inspection, including a request for pertinent to the scope and objectives of consent at any time and that withdrawal consent via facsimile to the inspection the CWC. of consent will not be a violation under point of contact (I–POC) listed on the Response: BIS will review, on a case- § 719.2(a)(1) of the CWCR (as stated in declaration. If for some reason, the I– by-case basis, requests for chemical the 64 FR 73755). POC does not have authority to grant determinations of dietary supplements, Response: The CWCIA explicitly consent on behalf of the company, he or edible oil products, and consumer states that consent may be withheld and she would escalate the request to the

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appropriate official. Because this the CWCIA or law is implied by the media such as microfilm or microfiche, procedure is in place, there is no need consent provisions. Existing language to ‘‘electronic remote access’’ seems to to change the existing CWCR. that effect is unnecessary and has forbid local access by computer, and therefore not been included. records must be provided ‘‘on the K. Section 716.4—Scope and Conduct of Comment: One respondent suggests inspection site’’ which may distinguish Inspections that § 716.4(c) (pre-inspection briefing it from the plant site; and (2) the Comment: One respondent states that (PIB)) should be revised to make the wording says the Inspection Team and when an owner, occupant or agent in following items mandatory topics: (1) the Host Team leader may agree on charge of the premises consents to an Plant, or plant site, health and safety other formats for records, not providing initial or routine inspection, he or she and alarms; (2) protection of for consultation with the site. is not consenting to provide access to, confidential business information; and Response: Section 716.4(e) is and has the right to deny access to: (1) (3) proposed inspection plan. The addressing an issue separate from the Research and development laboratories; respondent also suggests that the term recordkeeping provisions of part 721. (2) pilot plants; and (3) non-relevant ‘‘process flow’’ be a ‘‘simplified block Specifically, § 716.4(e) is referring to the production units, including, but not flow diagram of the process,’’ and that records to be made available during an limited to, plants and production units § 716.4(c)(1)(vii) should say ‘‘Units or inspection of a facility, and the ease that are exempted from UDOC plants specific to declared operations.’’ with which such records may be made declaration requirements and plants and This respondent also suggests that BIS available. The recordkeeping production units producing chemicals make a template for the PIB available on requirements of part 721 of the CWCR by fermentation, extraction, the Internet to let facilities do advance separately address the obligation on purification, distillation, and/or preparation. how records should be maintained. filtration. The respondent references a Response: The regulations for PIB presentation made by the U.S. Arms requirements have been amended to L. Section 716.5—Notification, Duration Control and Disarmament Agency to include plant site health and safety and Frequency of Inspections industry in 1993, during which these issues and requirements, and associated Comment: One respondent suggests assurances were made under alarm systems in existing subparagraph that, in order to ensure that facilities can discussions on ‘‘industry rights’’ and 716.4(c)(1)(i). The CWCR already express consent within four hours, ‘‘declared plants.’’ include as an optional topic discussion inspection notification via telephone is Response: An inspected facility at any of confidential business information also necessary to cover possible point may withhold consent during the during pre-inspection briefings in contingencies. To implement this, inspection. Such a withholding of 716.4(c)(2)(iii). Inclusion of this topic is revisions to § 716.5(a)(l)(i) and the consent would require the U.S. at the discretion of the plant site and accompanying table are proposed. Government to obtain a warrant to some plant sites may not wish to Response: BIS generally provides continue the inspection. However, when identify confidential business inspection notification to facility consent is granted to conduct the information. Therefore, it is not inspection points of contact via inspection, the boundary of that consent necessary to make this topic mandatory. telephone. However, we send written is understood to be the declared facility As suggested by the respondent, the notification of inspection with the or plant site, which, in some cases, requirements of 716.4(c)(1)(vi) have request for consent that is required by includes common infrastructure that been amended to require presentation of the CWCIA via facsimile. Because BIS support both the declared plant and a block flow diagram or simplified has these notification procedures in other activities located within the process flow diagram as opposed to place, there is no need to change the definition of the plant site. BIS will process flow in order to accurately existing CWCR. consult with plant sites to determine the reflect the intended detail of such Comment: One respondent stated that, access appropriate to comply with the presentations. Also, as suggested by the although §§ 716.5(a)(1)(i)(D) and mandate of the inspection while respondent, the requirements of 717.2(b)(2)(i)(D) state that a written protecting confidential business 716.4(c)(1)(vii) have been amended to inspection notice will tell the ‘‘names information to the extent practicable. require presentation of units and plants and titles’’ of each member of the However, the BIS Host Team Leader has specific to declared operations to more Inspection Team, it would be useful to the responsibility under the CWCR accurately reflect the intended scope of also know the nationality of each (§ 716.4(b)(2)) to determine the such presentation. The discussion of a inspector. The respondent notes that appropriate access. proposed inspection plan remains this will perhaps become less important Comment: One respondent suggests optional in § 716.4(c)(2)(vi) (previously if the State Department revises the ITAR that § 716.4(b)(2) should either: (1) Be § 716.4(c)(2)(vii)) because it is not requirements. Facilities face the deleted because the paragraph serves no required by the CWC. BIS has developed dilemma of possibly having to deny purpose when consent is not given or is a PIB template for downloading from its certain access in order to comply with withdrawn; or (2) revised to state that Web site at www.cwc.gov. ITAR requirements, although the CWC inspection activities apply only to areas Comment: One respondent suggests and the Act require sites to allow the of a facility subject to inspection and that § 716.4(e) (Records review) is Inspection Team into their facilities. that consent does not constitute a unnecessary because part 721 already Sites will need that information to make waiver of rights provided by the Act or deals with recordkeeping and should be informed decisions. other law. deleted or substantially edited. If edited, Response: BIS forwards facilities the Response: Section 716.4(b)(2) is the areas of concern are: (1) The idea official OPCW inspection notification as appropriately included to define the that records must be provided ‘‘on the part of its Host Team Notification scope of consent and to clarify that the inspection site’’ as ‘‘paper copies or via requesting consent. The OPCW areas of the facility subject to inspection electronic remote access by computer’’ notification only contains inspector pursuant to consent will be consistent is inconsistent with part 721 in several names and titles, which fulfills the with those subject to inspection respects—‘‘paper copies’’ implies relevant requirement under pursuant to Section 305 of the CWCIA. duplicates, providing only two options § 304(b)(3)(A)(iv) of the CWCIA. BIS No further waiver of rights provided by (paper or electronic) disqualifies other provides facilities with the nationality

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of inspectors during Advance Team required companies to submit Response: BIS will contact any activities upon request. information related to the costs incurred domestic company as early as practical If technical data subject to the ITAR from the conduct of a CWC inspection. in the clarification process (see is present on an inspection site, its In the interest of reducing the burden of amended § 717.1(b)). Section 717.1 disclosure to any foreign person, reporting on companies, the CWCR applies to official requests made by BIS. regardless of nationality, would require requests that only the minimum amount All official requests require a a license from the Department of State. of information necessary to show these compliance deadline. Companies have Since the Department of State has not costs be submitted to BIS, which five days to respond to a request for instituted an ITAR license exception for ordinarily is only an accounting of the information. This gives the U.S. purposes of CWC inspections, the policy total cost incurred by the facility as a Government time to review and possibly of BIS is to deny access to any item or result of the inspection. Companies can clarify with the facility any additional technology subject to ITAR to any interpret this requirement in many information that may need to be inspector absent U.S. Government ways, and they may include in this provided. authorization (see § 716.4(b)(3). calculation all costs they feel are P. Section 717.2—Challenge Inspections Therefore, no change has been made to relevant to the inspection, which the existing CWCR. conceivably could include the costs Comment: One respondent states that BIS should clarify that, if consent is M. Sections 716.7 and 717.3—Samples associated with preparing the report. While BIS encourages facilities to granted after the government has begun Comment: One respondent states that provide additional detail as necessary, seeking, or has obtained, a criminal the regulations are worded in a manner information beyond that relating to the warrant, the warrant will not be served that could result in unfair ‘‘double costs of the inspection is not required by while the consent remains in effect. penalties’’ for a single violation. For the CWCIA, and therefore, BIS is not Response: As stated above, whether example, a failure to comply with the obligated to include that information in BIS follows through with a warrant State Department’s regulations on its submission to Congress. However, exercise is dependent upon at which samples would also constitute a BIS will consider all information stage a facility consents after having not violation of BIS’s regulations which submitted by companies when it consented to an inspection. In certain require compliance with the State prepares the cost report for submission. instances, it may be more efficient for Department’s regulations. The Comment: One respondent suggested BIS to follow through with obtaining a respondent recommends that these that BIS provide a written reminder a warrant, and the circumstances of each provisions simply mention that the week or two after an inspection so that case will be reviewed on a case by case State Department’s regulations address the facility would not forget to prepare basis. the topic of samples, without the the required cost report. Comment: One respondent states that requirement of compliance. Response: Under the current notification of a challenge inspection Response: Sections 716.7 and 717.3 regulations, BIS sends the Inspection should be given in every case, not serve as cross-references to the Point of Contact a post-inspection letter simply ‘‘if such notification is deemed applicable sampling provisions in the (see new §§ 716.10 and 717.5). This appropriate.’’ State Department regulations. They are letter is sent upon receipt of the Final Response: Section 304(b)(2) of the properly included in the CWCR to Inspection Report from the Organization CWCIA provides the circumstances identify the existence of obligations for the Prohibition of Chemical under which notice is provided for a under the State Department regulations. Weapons. The letter reminds the challenge inspection. Specifically, it Since they reference the State company of any declaration changes states that ‘‘[n]otice for a challenge Department regulations, only the State suggested and that its report of inspection shall be provided at any Department penalties would apply— inspection-related costs is required. As appropriate time determined by the there is no risk of duplicative violations. a matter of policy, the companies are United States National Authority.’’ also contacted again if the report on Therefore, it is true that a notice is N. Sections 716.9 and 717.4—Report of inspection-related costs is not received required for routine inspections, but Inspection-Related Costs within 90 days. Companies may also provision of notice of a challenge Comment: One respondent proposed prepare the report during the inspection inspection is done at the decision of the that these sections be modified to allow and provide it to the BIS Host Team USNA. Therefore, provision of notice in facilities to report the cost of preparing Leader prior to BIS’s departure from the the instance of a challenge inspection is the report on inspection-related costs, in site. dependent upon a decision of the addition to the other required USNA. However, BIS recognizes that the information for the submission. This O. Section 717.1—Clarification CWCR is unclear on the timeline for respondent contends that BIS could Procedures; Challenge Inspection notice in a challenge inspection, and have met Congress’ needs in a manner Requests Pursuant to Article IX of the therefore, Section 717.2(b) has been that would have imposed fewer Convention amended to include the phrase: ‘‘if additional costs to facilities in Comment: One respondent stated that possible, and when such notification is compiling the information for the repot. a domestic company should have more deemed appropriate.’’ The respondent insists that BIS should than five working days to respond to an Comment: One respondent questioned have provided a mechanism through information request. Because the the language of § 717.2(b)(2)(ii), which facilities could supply Congress Convention requires the U.S. indicating that the U.S. Government information related to the costs incurred government to respond to the requesting may make an ‘‘advance team’’ available in preparing the reference report. State Party within ten days, the to assist with preparation for a challenge Response: The provisions of the respondent proposes that there be inspection. The concern is that the Act CWCIA require the Department of advance communication to the extent provides that (in the absence of consent) Commerce to submit a report to practicable, so that the formal challenge inspections will be conducted Congress on the costs incurred by U.S. information request does not come as a under a criminal warrant. Under this industry as a result of CWC inspections. surprise and documentation collection situation, it is not clear how the In order to compile this report, BIS has can begin in advance. Advance Team should be treated. The

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respondent requests that BIS clarify occupational health and safety reviewed by the Inspection Team. BIS whether the U.S. Government will regulations, or personnel and vehicles does not anticipate, or wish to promote, provide any immunity or other entering and personnel and personal the possibility of disclosure of CBI to protection to enable sites to work freely passenger vehicles exiting the facility). the Inspection Team without the Host with an Advance Team in conjunction Response: CBI, as defined in § 718.1, Team’s knowledge, and therefore has with a challenge inspection. follows the definition in the CWCIA, not codified procedures in the CWCR Response: No change to the CWCR is and therefore that paragraph requires no whereby a facility would have required. Although BIS may provide an revision. Not only are the relevant opportunity to unilaterally release Advance Team for those inspections, it sections of the Act referenced in § 718.1, information to the Inspection Team. is not obliged to do so. Given the broad but the definition of CBI is also Nonetheless, in the unlikely event of range of possible circumstances covered included in that paragraph. CBI disclosure directly to the Inspection by the challenge provisions of the CWC, Comment: In § 718.1(h), one Team without prior disclosure to, or it may not always be appropriate for BIS respondent notes a reference to discussion with, the Host Team, facility to provide Advance Team services. ‘‘personnel passenger vehicles’’ (64 FR representatives must immediately Immunity or other comparable 73803). The term used in the CWC inform the Host Team so that protection is not appropriate in the Verification Annex is ‘‘personal appropriate measures contemplated by inspection contest and has therefore not passenger vehicles.’’ The CWCR should § 718.2(d) may be taken. been included. be changed to reflect the terminology Comment: One respondent notes that Comment: One respondent notes that used in the CWC. the proposed rule indicates that BIS added provisions in a number of Response: BIS notes the difference in companies could not shroud irrelevant locations saying the Host Team will terms and agrees with the respondent. confidential information unless the Host consult with the site before making Accordingly, § 718.1(h) has been Team agreed to allow it, but that, in certain decisions about inspections. amended to follow the CWC, which response to comments, BIS changed the However, it appears that § 717.2(c) does reads, in Part X, paragraph 30 of the language of § 718.2(d)(1) to say not provide for consultation with the Verification Annex, ‘‘* * * personnel irrelevant confidential information may site before agreeing to extend a and personal passenger vehicles * * *.’’ be shrouded ‘‘as determined by’’ the challenge inspection. This respondent R. Section 718.2—Identification of Host Team. The respondent argues that feels this section should be revised to Confidential Business Information this change makes no real difference as provide for consultation. it does not provide a role for the facility Response: The respondent is correct Comment: One respondent suggests to express its legitimate concerns. that in certain sections of the CWCR, that there is a gap in this section Although the right to shroud irrelevant there is explicit provision for BIS to because some confidential business confidential information is a right consult with facility representatives, information (CBI) may be disclosed granted to the State Party, the loss of when appropriate, but that in the directly to an international Inspection confidential information is a harm to the challenge inspection context, there are Team, rather than through the Host facility. In order to be consistent with no similar provisions. Since this is a Team (e.g., visual access or employee changes made elsewhere in the U.S. Government-led inspection, BIS interview). The respondent suggests that regulations, the respondent suggests that has the decision-making authority to a new paragraph be added as follows: BIS provide for consultation with the extend a challenge inspection and is ‘‘(e) In any situation not addressed by facility before the Host Team makes its under no obligation to consult with the paragraphs (b) through (d) of this determination. facility before extending the timeline for section, where confidential business Response: BIS Host Teams are a challenge inspection. BIS is acting on information is disclosed to the cognizant of facility concerns about behalf of the U.S. Government in Inspection Team, the facility shall protection of CBI and will work with fulfilling its obligations under the CWC identify to the Host Team that the facilities to protect the release of CBI for the conduct of a challenge information is confidential. The Host that is unrelated to the inspection as inspection. It is therefore the Team shall then take appropriate steps much as possible. However, there are responsibility of BIS to take whatever to inform the Inspection Team of its instances where release of CBI to the measures are necessary, and reasonable, obligation to safeguard the information Inspection Team is unavoidable, and to ensure that the inspection is from further disclosure.’’ under those circumstances, the completed and the Inspection Team Response: Because the Host Team is Inspection Team will be advised that meets the goals of their mandate. BIS the U.S. Government representative at the information is CBI and that it should will make every effort to consult with the U.S. Government-led inspection, it be protected under the CWC’s facility representatives and to take will act as the intermediary between the confidentiality provisions. Shrouding is facility concerns under consideration facility and the Inspection Team. As one of many means through which CBI when making decisions during such, any discussion, or any transfer of is protected, but it is not always the inspections. information, orally or in writing, should most reasonable means of protection, be reviewed and effectively cleared by particularly considering the obvious Q. Section 718.1—Definitions the Host Team before being relayed to nature of the shroud. Frequently, there Comment: Two respondents state that the Inspection Team. CBI relevant to are other alternatives employed to the definition of Confidential Business inspection aims that is known to the protect release of CBI to the Inspection Information (CBI) in § 718.1 of the facility must be identified to the Host Team, such as revising their inspection interim rule must be revised to conform Team, at best, before the inspection route through the facility, or taping over to the much broader definition of CBI begins, or at the least, before disclosure the words or symbols on tanks or set forth in Section 103(g) of the CWCIA to Inspection Teams. It is imperative drums. The BIS Host Team will work (i.e., that no inspection shall extend to that facilities and facility with the company in deciding the most financial data, sales and marketing data, representatives be fully versed in the appropriate method for protecting pricing data, personnel data, research location of physical CBI on the facility unrelated CBI, but ultimately, since this data, patent data, data maintained for and the presence of CBI in records or is a U.S. Government-led inspection, the compliance with environmental or other documentation that could be Host Team will be the final decision-

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making authority on which protective CBI provisions of the Act, may be V. Section 719.8—Filing and Service of method will be employed. Since prior protected under other laws. Papers Other Than the NOVA consultation with the company, as Response: The reference to protection Comment: One respondent suggests appropriate, will generally be pursued, by other laws is already included in the that the idea that all papers must be the recommended change to the text of the CWCR in § 718.3(a). That served ‘‘simultaneously’’ with their regulatory text has not been made. section specifically states that filing is not achievable and that the confidentiality of all information will be word ‘‘simultaneously’’ be changed to S. Section 718.3—Disclosure of maintained consistent with the Act and Confidential Business Information ‘‘contemporaneously.’’ the other listed statutes and regulations. Response: Simultaneously and Comment: One respondent states that, There is no need to repeat this reference contemporaneously are interpreted by although § 718.3(c)(4)(ii) provides for elsewhere in part 718. BIS as synonyms. BIS expects all notice of disclosure to the owner of the T. Section 719.3—Violations of the motions and supporting documentation confidential business information with be served at the same time, and certain exceptions, notice is of limited IEEPA Subject to Judicial Enforcement Proceedings therefore, BIS requires simultaneous value unless the owner has an filing. This represents normal legal Comment: One respondent noted that opportunity to be heard. Section procedure. 404(c)(2)(B) of the Act expressly the 45 calendar day reference in provides a right to a hearing to object to § 719.3(a)(l)(iv) could be taken literally W. Section 719.20—Record for Decision disclosure and requires the United to allow for advance notification on Comment: One respondent notes that States National Authority (USNA) to only a single day. The respondent this section allows the Administrative provide its decision no later than 10 proposes that the wording of § 719.3 be Law Judge (ALJ), after an enforcement days before the scheduled or revised to provide that the notice is case, to transfer documents from the rescheduled date for the disclosure. required ‘‘not less than 45 calendar closed portion to the open portion of the However, the CWCR do not discuss this. days’’ before the import. record if the information becomes Respondents suggest revising Response: As suggested by the unrestricted through the passage of time § 718.3(c)(4) to specify the right to a respondent, § 719.3(a)(1)(iv) has been without expressly providing notice or hearing, how and when to request a amended to provide that notice is an opportunity for the owner of the hearing, what the hearing generally will required ‘‘not less than’’ 45 calendar information to be heard. In the preamble consist of, how and when the decision days before the import. to the interim rule, BIS defended this by will be communicated, and what avenue U. Section 719.6—Request for Hearing saying that the ALJ would necessarily of redress is available to the owner of and Answer make some sort of inquiry before the information if the USNA decides to transferring the records. The respondent Comment: One respondent is disclose the information. is concerned that the ALJ may not have concerned that this section allows only Response: The respondent has all the necessary information without fifteen days from ‘‘the date of the Notice referenced the hearing requirements that allowing for notice and an opportunity of Violation and Assessment (NOVA)’’ relate to the domestic release of to be heard. company CBI that is in the possession to request a hearing. If the regulations Response: BIS cannot impose and control of BIS. Under the referenced do not provide sufficient time, the site’s additional requirements upon the ALJ circumstances (e.g., pending attorney will have to file a request for other than those authorized by the Act. investigation, request of Congress, hearing automatically, as a It is unnecessary to include additional national interest, etc.) where CBI may be precautionary measure, even though direction for the ALJ in the CWCR, released, the company has a right to a ultimately the company may decide that unless such direction is uniquely hearing on the record prior to the no hearing was necessary. As the related to the CWC implementation release of such information. This fifteen-day period is specified by process. The issue raised by the hearing exercise is separate and distinct statute, the respondent suggests one of respondent is not CWC-specific, and from the release of CBI during facility the following: (a) Interpret the word therefore does not meet that test. inspections. There is no right to a ‘‘days’’ to mean ‘‘working days’’ to hearing during the inspection process, address weekends and holidays; (b) X. Section 719.21—Payment of Final which is why all CBI must be identified interpret the term ‘‘date of the NOVA’’ Assessment to the Host Team prior to the start of the to mean the date of receipt of the NOVA Comment: One respondent suggests inspection in order for BIS to take to address any delays in the mail; or (c) that, in order to prevent an ALJ from measures to control access to CBI or commit to provide a telephone call to let requiring payment within an prevent its release. the company know that a NOVA is unreasonably short time, that § 719.21(a) Comment: One respondent notes that coming, with a follow-up facsimile if be revised to say ‘‘or within a longer because §§ 718.2(c) and 718.3(b) state requested. time specified in the order.’’ This that certain information is not subject to Response: BIS agrees with the respondent commented on this the CBI provisions of the Act, that this respondent regarding the 15-day time provision in the proposal, but BIS has reference will therefore be period and the ‘‘date’’ of the NOVA. not addressed the comment. misunderstood to mean that the Accordingly, BIS has amended Response: As suggested by the information cannot be protected as § 719.6(a) to state ‘‘15 business days’’ respondent, § 719.21(a) has been confidential business information. Other and has inserted the words ‘‘from the amended to provide that payment shall provisions in the CWCR (such as postmarked date of the NOVA’’ in the be made within 30 days of the effective §§ 718.3(b)(1) and (2)) indicate that this relevant sections of the CWCR. As to the date of the order or within such longer was not BIS’s intent and that other laws respondent’s suggestion in (c), BIS period of time as may be specified in the will protect the information and provide cannot guarantee a phone-call in these order. the procedures to be followed. The circumstances, but will note that the respondent suggests that BIS clarify recipients should contact BIS in the Y. Section 721.1—Inspection of Records §§ 718.2(c) and 718.3(b) to say that the event an extension is required for Comment: One respondent suggests information, although not subject to the response time to these provisions. that this section begin, ‘‘Upon formal

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request * * *’’ to avoid confusion over permission to dispose of the records. intend to limit industry’s activities to whether a request has been made and to For these reasons, § 721.3 should either only these listed tools. There are a wide assist in determining compliance. be deleted or revised to allow disposal variety of commercial products Response: Requests made by the of records after they are provided to the available that may be used. Upon Department of Commerce may be made government. request, BIS will also assist companies formally or informally, by telephone, in Response: Section 404 of the Act in identifying their geographical person, or through written provides for the release of certain CWC- coordinates. correspondence. It is not necessary to related records in the national interest Comment: One respondent notes that distinguish between the types of to Congress, enforcement agencies, or ‘‘rounding rules’’ have been provided requests that could be made. Therefore, other federal agencies, as necessary. The for Schedule 1, Schedule 2, and no change has been made to the existing Act provides guidelines for requesting Schedule 3 substances in mixtures and CWCR language. records, the protection of the that these rounding rules are necessary information contained in the records, for UDOCs for the very same reasons, Z. Section 721.2—Recordkeeping and hearings related to their release. As i.e.: Low concentrations do not pose a Comment: Two respondents propose the Act specifically addresses the risk to the aims of the Convention; low that the recordkeeping requirements handling of records, and since the Act concentrations are not readily amenable recognize industry’s records is applicable to all government agencies, to diversion; the producer may not even management programs in the interest of there is no need for BIS to further know that a substance is present, if the additional costs to and interruption of delineate those requirements in its concentration is very low; low ordinary business and as recognized regulations. concentrations may reflect inadvertent under other statutes. Respondents production of an impurity; and, minor BB. Miscellaneous Comments request that they be able to use whatever fluctuations in very low concentrations type of records normally used in the Comment: It is one respondent’s may make it difficult to provide an ordinary course of business (originals or understanding that the OPCW recently accurate estimate of the annual quantity. duplicates), be allowed to use any amended the requirements relating to In addition, UDOCs are farther removed duplication system normally used in the transfers of saxitoxin and recommended from possible ‘‘chemical weapons’’ use ordinary course of business, be able to that these changes be incorporated into than any of the scheduled chemicals store records in logical locations that do all parts of the regulations that relate to and may be present in large numbers in not unduly impair inspections (on or off the reporting of saxitoxin transfers. In a product stream in different the declared plant site), and be allowed addition, the Handbook for Schedule 1 concentrations that fluctuate. In the but not required to provide personnel Declarations and Reports should be absence of any ‘‘rounding rule,’’ and equipment to assist with records. amended to reflect these changes. additional Declarations and Reports will Response: The existing regulatory Furthermore, the respondent contends increase the cost of compliance without language is designed to allow for that such OPCW amendments should providing a corresponding benefit. The accessibility of records within the time initiate notice and comment rulemaking respondent proposes that any limitations imposed by the CWC. That to change the CWCR where it does not constituent less than 5% in a mixture be language is further designed to require conflict with the CWCIA. excluded; if not, perhaps the same retention only of those records (or Response: Based upon an OPCW ‘‘0.5% round down to zero’’ that applies copies thereof) necessary to verify Decision on transfers of the Schedule 1 to Schedule 1 substances could apply. compliance with the CWCR. chemical saxitoxin, BIS has changed the Response: BIS will review on a case- Unfortunately, based on the advance notification period for transfers by-case basis requests for implementation of the CWCR to date, of 5 milligrams or less of saxitoxin, only determinations of mixtures containing certain required records may not be kept when the chemical will be used for low concentrations of UDOCS. in the ordinary course of business and medical/diagnostic purposes. The Comment: According to § 718.2(b)(2) certain document retention and advance notification for these transfers and a footnote to Supplement No. 1 to duplication policies that are used in the must be submitted to BIS at least 3 part 718, companies must submit an up- ordinary course of business may calendar days prior to export or import. front, written rationale to claim certain likewise not adequately protect information is confidential. One necessary documentation. As a result, CC. CWC Declaration Forms respondent suggests that this the existing regulatory language has Comment: Two respondents requirement be deleted to reduce the been largely retained. encourage BIS to allow another possible regulatory burden and require written means of determining the latitude and substantiation only in cases where a AA. Section 721.3—Destruction or longitude of a declarable plant site, challenge is raised to the confidentiality Disposal of Records namely Land View III Mapping of the information. The respondent Comment: Two respondents state that Software. Respondents understand that contends this was consistent with the the requirements of this section various industries already rely on this reporting requirements of many undermine records management software for such determinations and different federal, state and local programs. Respondents argue that the suggest BIS allow the use of this and agencies. CWCR do not require that the similar software in the course of CWC Response: Due to the explicit governmental agency must justify inspections as a means to further definitional requirements provided in requesting the record, that once a record minimize the CWC’s compliance costs the Act pertaining to ‘‘confidential has been provided to the government it to industry. business information,’’ BIS has included should be of no concern whether the Response: BIS has updated in the CWCR the requirement that company retains its copy thereafter, that Supplement 1 to the Declaration and companies provide justification for why there is no ending date specified, that Report Handbook to clarify that the certain information should be these requirements exceed BIS’s tools listed in the Handbook were only considered CBI. BIS requests this authority, and that the regulations do suggested options for industry to use in ‘‘rationale’’ in writing in order to clearly not impose any standards on the determining their facility’s latitude and ascertain that all elements of the Act’s agency’s decision to grant or deny longitude coordinates. BIS did not definition of CBI are met by the

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company information. Additionally, this involving scheduled chemicals and through the use of automated collection written justification assists BIS in UDOCs, described in Parts 712 through techniques or other forms of information keeping track of confidential business 715 of the CWCR, in order to determine technology. information identified by the company whether or not the facility is in Send comments regarding this burden during the inspection process. As such, compliance with the CWCR. This new estimate or any other aspect of this this requirement is an important tool requirement would apply to all persons collection of information, including that assists BIS in complying with the and facilities that are subject to the suggestions for reducing the burden, to Act and meeting the needs of the reporting or declaration provisions of David Rostker, Office of Management companies. the CWCR, as set forth in Part 721. The and Budget (OMB), by e-mail to Comment: One respondent suggests total estimated annual burden hours for [email protected], or by fax that BIS adopt a generic policy that no the compliance reviews authorized to (202) 395–7285; and to the Regulatory more than two significant digits are under new Section 711.3 would be 85 Policy Division, Bureau of Industry and required. This will greatly reduce the hours and the total estimated annual Security, Department of Commerce, P.O. rounding burdens, without harming the cost would be $3,236.46. This rule also Box 273, Washington, DC 20044. regulatory program in any way. proposes to add a new requirement for 3. This rule does not contain policies Response: This issue is currently the submission of amendments (to with Federalism implications as that under discussion at OPCW. previously submitted declarations and term is defined in Executive Order Accordingly, BIS will not implement a reports) resulting from inspection 13132. policy until a final decision on this findings. The total estimated annual 4. The Regulatory Flexibility Act matter has been agreed upon by all burden hours for this new amendment (RFA), as amended by the Small States Parties. requirement would be 112 hours and Business Regulatory Enforcement Comment: One respondent contends the total estimated annual cost would be Fairness Act of 1996 (SBREFA), 5 U.S.C. that the choices for ‘‘purpose of $4,267. Note that the estimated burden 601 et seq., generally requires an agency production’’ leave a gap in reporting hours and cost for inspection related to prepare a regulatory flexibility analysis of any rule subject to the notice transfers to another company within the amendments are already included in the and comment rulemaking requirements same industry. The respondent information collection authorization under the Administrative Procedure Act proposed revising the Schedule 3 from OMB. Therefore, to avoid double (5 U.S.C. 553) or any other statute, import/export forms to say, ‘‘Transfer to counting the information, it does not unless the agency certifies that the rule other company or industry.’’ appear as a separate line item under the Response: BIS has changed the will not have a significant economic revision to the information collection ‘‘purpose(s) of production’’ question on impact on a substantial number of small for this proposed rule. Finally, this rule Schedule 3 Form 3–3 as suggested by entities. Under section 605(b) of the proposes to add a new reporting form, the respondent. RFA, however, if the head of an agency entitled ‘‘No Changes’’ Certification certifies that a rule will not have a Rulemaking Requirements Form, for UDOC facilities to use, if significant economic impact on a 1. This proposed rule has been appropriate, for certifying that there are substantial number of small entities, the determined to be significant for no changes to the information declared statute does not require the agency to purposes of E.O. 12866. in the facilities prior year’s annual prepare a regulatory flexibility analysis. 2. Notwithstanding any other declaration on past activities. This new Pursuant to section 605(b), the Chief provision of law, no person is required form will reduce industry’s estimated Counsel for Regulations, Department of to respond to, nor shall any person be annual burden by 15 hours and $571.50. Commerce, certified to the Chief subject to a penalty for failure to comply Note that, like the information related to Counsel for Advocacy, Small Business with, a collection of information subject inspection-related amendments, the Administration, that this proposed rule, to the Paperwork Reduction Act of 1995 estimated burden hours and cost for if promulgated, will not have a (44 U.S.C. 3501 et seq.) (PRA), unless implementing the ‘‘No Changes’’ significant economic impact on a that collection of information displays a Certification Form are included in a substantial number of small entities for currently valid Office of Management prior information collection the reasons explained below. and Budget (OMB) Control Number. authorization from OMB. In conclusion, Consequently, BIS has not prepared a This rule proposes to revise an existing the total estimated annual burden hours regulatory flexibility analysis. collection of information subject to the for declarations, reports, amendments, Small entities include small requirements of the PRA. This and requests for compliance-related businesses, small organizations and collection has been approved by OMB information under this proposed rule small governmental jurisdictions. For under Control Number 0694–0091 will increase from 4401 burden hours to purposes of assessing the impacts of this (Chemical Weapons Convention— 4471 burden hours. The changes proposed rule on small entities, small Declaration and Report Forms), which proposed by this rule are addressed entity is defined as: (1) A small business carries burden hour estimates of 10.6 under two separate information according to RFA default definitions for hours for Schedule 1 Chemicals, 11.9 collection submissions. small business (based on SBA size hours for Schedule 2 chemicals, 2.5 Comments are invited on: (i) Whether standards), (2) a small governmental hours for Schedule 3 chemicals, 5.3/5.1 the collection of information is jurisdiction that is a government of a for unscheduled discrete organic necessary for the functions of the city, county, town, school district or chemicals, and 0.17 hours for Schedule agency, including whether the special district with a population of less 1 notifications. This rule proposes to information shall have practical utility; than 50,000, and (3) a small add a new Section 711.3 to the (ii) the accuracy of the agency’s estimate organization that is any not-for-profit Chemical Weapons Convention of the burden of the proposed collection enterprise which is independently Regulations (CWCR) that would of information; (iii) ways to enhance the owned and operated and is not authorize BIS to contact any facility to quality, utility, and clarity of the dominant in its field. BIS has request information concerning information to be collected; and (iv) determined that this proposed rule production, processing, consumption, ways to minimize the burden of the would affect only the first category of export, import, or other activities collection on respondents, including small entities (i.e., small businesses).

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The President reported to the Congress, Finally, this rule proposes to add a in this rule the minimum requirements in December 2003, as required under new reporting form, entitled ‘‘No consistent with a reasonable reading of Section 309 of the CWC Implementation Changes’’ Certification Form, for UDOC the Convention, keeping in mind its Act, that 297 U.S. companies facilities to use, if appropriate, for purposes and objectives. representing 691 facilities, plant sites, certifying that there are no changes to List of Subjects and trading companies were subject to the information declared in the facilities the declaration and reporting prior year’s annual declaration on past 15 CFR Part 710 requirements under the Chemical activities. This new form will reduce Weapons Convention Regulations industry’s estimated annual burden by Chemicals, Exports, Foreign Trade, (CWCR). Although BIS estimates that 15 hours and $571.50. Imports, Treaties. the majority of these 297 companies are The total estimated increase in annual 15 CFR Part 711 substantially sized businesses, having burden hours to implement the more than 500 employees, BIS does not additional recordkeeping and reporting Chemicals, Confidential business have sufficient information on these requirements described above would be information, Reporting and companies to definitively characterize 197 burden hours and the total recordkeeping requirements. them as large entities. The Small estimated annual cost would be 15 CFR Part 712 Business Administration (SBA) has $7,503.46. The total cost of these established standards for what recordkeeping and reporting Chemicals, Exports, Foreign Trade, constitutes a small business, with requirements would represent only a Imports, Reporting and recordkeeping respect to each of the Standard small percentage of the revenues requirements. Industrial Classification (SIC) code generated by the affected companies. 15 CFR Part 713 categories for ‘‘Chemicals and Allied Although the proposed rule would Products.’’ However, BIS is not able to affect a substantial number of small Chemicals, Exports, Foreign Trade, determine which of these SIC code entities (i.e., 297 companies), the total Imports, Reporting and recordkeeping categories apply to the companies that economic impact on the affected entities requirements. are subject to the declaration, reporting, (i.e., $7,503.46) would not be 15 CFR Part 714 advance notification, recordkeeping or significant. Since the proposed revisions inspection requirements of this rule. to the CWCR would not impose a Chemicals, Exports, Foreign Trade, Therefore, for the purpose of assessing significant economic impact on a Imports, Reporting and recordkeeping the impact of this proposed rule, BIS substantial number of small entities, BIS requirements. will assume that the 297 companies are did not prepare a regulatory flexibility 15 CFR Part 715 small entities. analysis for this rule. Although this proposed rule would Finally, the changes proposed by this Chemicals, Exports, Foreign Trade, affect a substantial number of small rule should be viewed in light of the fact Imports, Reporting and recordkeeping entities (i.e., 297 companies), if adopted, that BIS’s discretion in formulating the requirements. the additional recordkeeping and declaration, reporting and advance reporting requirements that would be notification, and recordkeeping 15 CFR Part 716 imposed by this rule would not have a requirements of the CWCR is limited by Chemicals, Confidential business significant economic impact on these the Chemical Weapons Convention (the information, Reporting and entities. Convention). The Organization for the recordkeeping requirements, Search First, this rule proposes to add a new Prohibition of Chemical Weapons warrant, Treaties. Section 711.3 that would authorize BIS (OPCW) has issued forms for States to contact any facility to determine Parties to use for declarations. In 15 CFR Part 717 whether or not it is in compliance with drafting the CWCR requirements and the Chemicals, Confidential business the CWCR. The information that BIS forms for U.S. persons to use, BIS has information, Reporting and would be authorized to request would consistently interpreted the recordkeeping requirements, Search concern production, processing, Convention’s requirements as narrowly warrant, Treaties. consumption, export, import, or other as possible to ensure that only activities involving scheduled information that the United States 15 CFR Part 718 chemicals and UDOCs described in National Authority must declare to the Confidential business information, Parts 712 through 715 of the CWCR. OPCW is to be submitted to BIS. Other Reporting and recordkeeping This new requirement would apply to States Parties, such as Canada, have requirements. all persons and facilities subject to the imposed much broader reporting reporting or declaration provisions of requirements on their industries, with 15 CFR Part 719 the CWCR, as set forth in Part 721. The the government taking on the Administrative proceedings, Exports, total estimated annual burden hours for responsibility of determining which of Imports, Penalties, Violations. the compliance reviews authorized the information collected must be under new Section 711.3 would be 85 declared to the OPCW. In addition, 15 CFR Part 720 hours and the total estimated annual certain declaration requirements of the cost would be $3,236.46. Convention are subject to interpretation Penalties, violations. Second, this rule proposes to add a by States Parties. Until the Conference 15 CFR Part 721 new requirement for the submission of of States Parties establishes clear rules amendments (to previously submitted for these requirements, States Parties Reporting and recordkeeping declarations and reports) resulting from may use their ‘‘national discretion’’ to requirements. inspection findings. The total estimated implement them. ‘‘National discretion’’ Accordingly, the Chemical Weapons annual burden hours for the new generally means a reasonable Convention Regulations (15 CFR, amendment requirement would be 112 interpretation of the requirement. For Chapter VII, Subchapter B, Parts 710– hours and the total estimated annual requirements currently subject to 729) are proposed to be revised to read cost would be $4,267. ‘‘national discretion,’’ BIS has adopted as follows:

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PART 710—GENERAL INFORMATION Security of the United States on the production, processing, AND OVERVIEW OF THE CHEMICAL Department of Commerce, including consumption, export and import of WEAPONS CONVENTION Export Administration and Export specific chemicals. See also related REGULATIONS (CWCR) Enforcement. definitions of declared facility, By-product. Means any chemical undeclared facility and report. Sec. substance or mixture produced without Declared facility or plant site. Means 710.1 Definitions of terms used in the a separate commercial intent during the a facility or plant site that submits Chemical Weapons Convention manufacture, processing, use or disposal declarations of activities involving Regulations (CWCR). 710.2 Scope of the CWCR. of another chemical substance or Schedule 1, Schedule 2, Schedule 3, or 710.3 Purposes of the Convention and mixture. unscheduled discrete organic chemicals CWCR. Chemical Weapon. Means the above specified threshold quantities. 710.4 Overview of scheduled chemicals and following, together or separately: Discrete organic chemical. Means any examples of affected industries. (1) Toxic chemicals and their chemical belonging to the class of 710.5 Authority. precursors, except where intended for chemical compounds consisting of all 710.6 Relationship between the Chemical purposes not prohibited under the compounds of carbon, except for its Weapons Convention Regulations and Chemical Weapons Convention (CWC), oxides, sulfides, and metal carbonates, the Export Administration Regulations, the International Traffic in Arms provided that the type and quantity are identifiable by chemical name, by Regulations, and the Alcohol, Tobacco, consistent with such purposes; structural formula, if known, and by Firearms and Explosives Regulations. (2) Munitions and devices, Chemical Abstract Service registry Supplement No. 1 to Part 710—States Parties specifically designed to cause death or number, if assigned. (Also see the to the Convention on the Prohibition of other harm through the toxic properties definition for unscheduled discrete the Development, Production, of those toxic chemicals specified in organic chemical.) Stockpiling and Use of Chemical paragraph (1) of this definition, which Domestic transfer. Means, with regard Weapons and on Their Destruction would be released as a result of the to declaration requirements for Supplement No. 2 to Part 710—Definitions of Production employment of such munitions and Schedule 1 chemicals under the CWCR, devices; any movement of any amount of a Authority: 22 U.S.C. 6701 et seq.; E.O. (3) Any equipment specifically Schedule 1 chemical outside the 13128, 64 FR 36703, 3 CFR, 1999 Comp., p. designed for use directly in connection geographical boundary of a facility in 199. with the employment of munitions or the United States to another destination § 710.1 Definitions of terms used in the devices specified in paragraph (2) of this in the United States, for any purpose. Chemical Weapons Convention Regulations definition. Also means, with regard to declaration (CWCR). Chemical Weapons Convention (CWC requirements for Schedule 2 and The following are definitions of terms or Convention). Means the Convention Schedule 3 chemicals under the CWCR, used in the CWCR (parts 710 through on the Prohibition of the Development, movement of a Schedule 2 or Schedule 729 of this subchapter, unless otherwise Production, Stockpiling and Use of 3 chemical in quantities and noted): Chemical Weapons and on Their concentrations greater than specified Act (The). Means the Chemical Destruction, and its annexes opened for thresholds, outside the geographical Weapons Convention Implementation signature on January 13, 1993. boundary of a facility in the United Act of 1998 (22 U.S.C. 6701 et seq.). Chemical Weapons Convention States, to another destination in the Advance Notification. Means a notice Regulations (CWCR). Means the United States, for any purpose. informing BIS of a company’s intention regulations contained in 15 CFR parts Domestic transfer includes movement to export to or import from a State Party 710 through 729. between two divisions of one company a Schedule 1 chemical. This advance Consumption. Consumption of a or a sale from one company to another. notification must be submitted to BIS at chemical means its conversion into Note that any movement to or from a least 45 days prior to the date of export another chemical via a chemical facility outside the United States is or import (except for transfers of 5 reaction. Unreacted material must be considered an export or import for milligrams or less of saxitoxin for accounted for as either waste or as reporting purposes, not a domestic medical/diagnostic purposes, which recycled starting material. transfer. (Also see definition of United must be submitted to BIS at least 3 days Declaration or report form. Means a States.) prior to export or import). BIS will multi-purpose form to be submitted to EAR. Means the Export inform the company in writing of the BIS regarding activities involving Administration Regulations (15 CFR earliest date the shipment may occur Schedule 1, Schedule 2, Schedule 3, or parts 730 through 799). under the advance notification unscheduled discrete organic chemicals. Explosive. Means a chemical (or a procedure. Additionally, this advance Declaration forms will be used by mixture of chemicals) that is included notification requirement is imposed in facilities that have data declaration in Class 1 of the United Nations addition to any export license obligations under the CWCR and are Organization hazard classification requirements under the Department of ‘‘declared’’ facilities whose facility- system. Commerce’s Export Administration specific information will be transmitted Facility. Means any plant site, plant or Regulations (15 CFR Parts 730 through to the OPCW. Report forms will be used unit. 799) or the Department of State’s by entities that are ‘‘undeclared’’ Facility Agreement. Means a written International Traffic in Arms facilities or trading companies that have agreement or arrangement between a Regulations (22 CFR Parts 120 through limited reporting requirements for only State Party and the Organization relating 130) or any import license requirements export and import activities under the to a specific facility subject to on-site under the Department of Justice’s CWCR and whose facility-specific verification pursuant to Articles IV, V, Bureau of Alcohol, Tobacco, Firearms information will not be transmitted to and VI of the Convention. and Explosives Regulations (27 CFR part the OPCW. Information from declared Host Team. Means the U.S. 447). facilities, undeclared facilities and Government team that accompanies the Bureau of Industry and Security (BIS). trading companies will also be used to inspection team from the Organization Means the Bureau of Industry and compile U.S. national aggregate figures for the Prohibition of Chemical

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Weapons during a CWC inspection for (6) Records associated with the (2) Any purpose directly related to which the regulations in this subchapter movement into, around, and from the protection against toxic chemicals and apply. site, of declared chemicals and their to protection against chemical weapons; Host Team Leader. Means the feedstock or product chemicals formed (3) Any military purpose of the representative from the Department of from them, as appropriate. United States that is not connected with Commerce who heads the U.S. Plant site. Means the local integration the use of a chemical weapon and that Government team that accompanies the of one or more plants, with any is not dependent on the use of the toxic Inspection Team during a CWC intermediate administrative levels, or poisonous properties of the chemical inspection for which the regulations in which are under one operational weapon to cause death or other harm; or this subchapter apply. control, and includes common (4) Any law enforcement purpose, Hydrocarbon. Means any organic infrastructure, such as: including any domestic riot control compound that contains only carbon (1) Administration and other offices; purpose and including imposition of and hydrogen. (2) Repair and maintenance shops; capital punishment. Impurity. Means a chemical substance Report. Means information due to BIS (3) Medical center; unintentionally present with another on exports and imports of Schedule 1, (4) Utilities; chemical substance or mixture. Schedule 2 or Schedule 3 chemicals (5) Central analytical laboratory; Inspection Notification. Means a above applicable thresholds. Such (6) Research and development written announcement to a plant site by information is included in the national laboratories; the United States National Authority aggregate declaration transmitted to the (USNA) or the BIS Host Team of an (7) Central effluent and waste OPCW. Facility-specific information is impending inspection under the treatment area; and not included in the national aggregate Convention. (8) Warehouse storage. declaration. Note: This definition does Inspection Site.—Means any facility Precursor. Means any chemical not apply to parts 719 and 720 (see or area at which an inspection is carried reactant which takes part, at any stage § 719.1) of this subchapter. out and which is specifically defined in in the production, by whatever method, Schedules of Chemicals. Means the respective facility agreement or of a toxic chemical. The term includes specific lists of toxic chemicals, groups inspection request or mandate or any key component of a binary or of chemicals, and precursors contained inspection request as expanded by the multicomponent chemical system. in the CWC. See Supplements No. 1 to alternative or final perimeter. Processing. Means a physical process parts 712 through 714 of this Inspection Team. Means the group of such as formulation, extraction and subchapter. inspectors and inspection assistants purification in which a chemical is not State Party. Means a country for assigned by the Director-General of the converted into another chemical. which the CWC is in force. See Technical Secretariat to conduct a Production. Means the formation of a Supplement No. 1 to this part. particular inspection. chemical through chemical reaction, Storage. For purposes of Schedule 1 Intermediate. Means a chemical including biochemical or biologically chemical reporting, means any quantity formed through chemical reaction that mediated reaction (see Supplement No. that is not accounted for under the is subsequently reacted to form another 2 to this part). categories of production, export, import, chemical. consumption or domestic transfer. ITAR. Means the International Traffic Notes: 1. Production of Schedule 1 chemicals means formation through chemical Technical Secretariat. Means the in Arms Regulations (22 CFR parts 120 organ of the OPCW charged with through 130). synthesis as well as processing to extract and isolate Schedule 1 chemicals. carrying out administrative and Organization for the Prohibition of technical support functions for the Chemical Weapons (OPCW). Means the 2. Production of a Schedule 2 or Schedule 3 chemical means all steps in the production OPCW, including carrying out the international organization, located in of a chemical in any units within the same verification measures delineated in the The Hague, the Netherlands, that plant through chemical reaction, including CWC. administers the CWC. any associated processes (e.g., purification, Toxic Chemical. Means any chemical Person. Means any individual, separation, extraction, distillation, or which, through its chemical action on corporation, partnership, firm, refining) in which the chemical is not life processes, can cause death, association, trust, estate, public or converted into another chemical. The exact temporary incapacitation, or permanent private institution, any State or any nature of any associated process (e.g., harm to humans or animals. The term political subdivision thereof, or any purification, etc.) is not required to be includes all such chemicals, regardless political entity within a State, any declared. of their origin or of their method of foreign government or nation or any Production by synthesis. Means production, and regardless of whether agency, instrumentality or political production of a chemical that is isolated they are produced in facilities, in subdivision of any such government or for use or sale. munitions, or elsewhere. Toxic nation, or other entity located in the Protective purposes in relation to chemicals that have been identified for United States. Schedule 1 chemicals. Means any Plant. Means a relatively self- the application of verification measures purpose directly related to protection contained area, structure or building are in schedules contained in against toxic chemicals and to containing one or more units with Supplements No. 1 to parts 712 through protection against chemicals weapons. auxiliary and associated infrastructure, 714 of this subchapter. Further means the Schedule 1 chemical such as: Trading company. Means any person (1) Small administrative area; is used for determining the adequacy of involved in the export and/or import of (2) Storage/handling areas for defense equipment and measures. scheduled chemicals in amounts greater feedstock and products; Purposes not prohibited by the CWC. than specified thresholds, but not in the (3) Effluent/waste handling/treatment Means the following: production, processing or consumption area; (1) Any peaceful purpose related to an of such chemicals in amounts greater (4) Control/analytical laboratory; industrial, agricultural, research, than threshold amounts requiring (5) First aid service/related medical medical or pharmaceutical activity or declaration. If such persons exclusively section; and other activity; export or import scheduled chemicals in

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amounts greater than specified Attorney General, and the heads of other independently decide for what purposes thresholds, they are subject to reporting agencies considered necessary or to use the facilities. requirements but are not subject to advisable by the President, or their (b) Activities subject to the CWCR. routine inspections. Such persons must designees. The Secretary of State is the The activities subject to the CWCR be the principal party in interest of the Director of the USNA. (parts 710 through 729 of this exports or imports and may not delegate Unscheduled chemical. Means a subchapter) are activities, including CWC reporting responsibilities to a chemical that is not contained in production, processing, consumption, forwarding or other agent. Schedule 1, Schedule 2, or Schedule 3 exports and imports, involving Transfer. See domestic transfer. (see Supplements No. 1 to parts 712 chemicals further described in parts 712 Transient intermediate. Means any through 714 of this subchapter). through 715 of this subchapter. These chemical which is produced in a Unscheduled Discrete Organic do not include activities involving chemical process but, because they are Chemical (UDOC). Means any ‘‘discrete inorganic chemicals other than those in a transition state in terms of organic chemical’’ that is not contained listed in the Schedules of Chemicals, or thermodynamics and kinetics, exist only in the Schedules of Chemicals (see other specifically exempted for a very short period of time, and Supplements No. 1 to parts 712 through unscheduled discrete organic chemicals. cannot be isolated, even by modifying or 714 of this subchapter) and subject to dismantling the plant, or altering the declaration requirements of part 715 § 710.3 Purposes of the Convention and process operating conditions, or by of this subchapter. Unscheduled CWCR. stopping the process altogether. discrete organic chemicals subject to (a) Purposes of the Convention. (1) Undeclared facility or plant site. declaration under this subchapter are The Convention imposes upon the Means a facility or plant site that is not those produced by synthesis that are United States, as a State Party, certain subject to declaration requirements isolated for use or sale as a specific end- declaration, inspection, and other because of past or anticipated product. obligations. In addition, the United production, processing or consumption You. The term ‘‘you’’ or ‘‘your’’ means States and other States Parties to the involving scheduled or unscheduled any person (see also definition of Convention undertake never under any discrete organic chemicals above ‘‘person’’). With regard to the circumstances to: specified threshold quantities. However, declaration and reporting requirements (i) Develop, produce, otherwise such facilities and plant sites may have of the CWCR, ‘‘you’’ refers to persons acquire, stockpile, or retain chemical a reporting requirement for exports or that have an obligation to report certain weapons, or transfer, directly or imports of such chemicals. activities under the provisions of the indirectly, chemical weapons to anyone; Unit. Means the combination of those CWCR. (ii) Use chemical weapons; items of equipment, including vessels (iii) Engage in any military and vessel set up, necessary for the § 710.2 Scope of the CWCR. preparations to use chemical weapons; production, processing or consumption The Chemical Weapons Convention or of a chemical. Regulations (parts 710 through 729 of (iv) Assist, encourage or induce, in United States. Means the several this subchapter), or CWCR, implement any way, anyone to engage in any States of the United States, the District certain obligations of the United States activity prohibited by the Convention. of Columbia, and the commonwealths, under the Convention on the (2) One objective of the Convention is territories, and possessions of the Prohibition of the Development, to assure States Parties that lawful United States, and includes all places Production, Stockpiling and Use of activities of chemical producers and under the jurisdiction or control of the Chemical Weapons and on Their users are not converted to unlawful United States, including any of the Destruction, known as the CWC or activities related to chemical weapons. places within the provisions of Convention. To achieve this objective and to give paragraph (41) of section 40102 of Title (a) Persons and facilities subject to the States Parties a mechanism to verify 49 of the United States Code, any civil CWCR. (1) The CWCR apply to all compliance, the Convention requires the aircraft of the United States or public persons and facilities located in the United States and all other States Parties aircraft, as such terms are defined in United States, except the following U.S. to submit declarations concerning paragraphs (1) and (37), respectively, of Government facilities: chemical production, consumption, section 40102 of Title 49 of the United (i) Department of Defense facilities; processing and other activities, and to States Code, and any vessel of the (ii) Department of Energy facilities; permit international inspections within United States, as such term is defined in and their borders. section 3(b) of the Maritime Drug (iii) Facilities of other U.S. (b) Purposes of the Chemical Weapons Enforcement Act, as amended (section Government agencies that notify the Convention Regulations. To fulfill the 1903(b) of Title 46 App. of the United USNA of their decision to be excluded United States’ obligations under the States Code). from the CWCR. Convention, the CWCR (parts 710 United States National Authority (2) For purposes of this subchapter, through 729 of this subchapter) prohibit (USNA). Means the Department of State ‘‘United States Government facilities’’ certain activities, and compel the serving as the national focal point for are those facilities owned and operated submission of information from all the effective liaison with the by a U.S. Government agency (including facilities in the United States, except for Organization for the Prohibition of those operated by contractors to the Department of Defense and Department Chemical Weapons and other States agency), and those facilities leased to of Energy facilities and facilities of other Parties to the Convention and and operated by a U.S. Government U.S. Government agencies that notify implementing the provisions of the agency (including those operated by the USNA of their decision to be Chemical Weapons Convention contractors to the agency). ‘‘United excluded from the CWCR on activities, Implementation Act of 1998 in States Government facilities’’ do not including exports and imports of coordination with an interagency group include facilities owned by a U.S. scheduled chemicals and certain designated by the President consisting Government agency and leased to a information regarding unscheduled of the Secretary of Commerce, Secretary private company or other entity such discrete organic chemicals as described of Defense, Secretary of Energy, the that the private company or entity may in parts 712 through 715 of this

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subchapter. U.S. Government facilities (d) Unscheduled discrete organic Bahrain, Bangladesh, Belarus, Belgium, are those owned by or leased to the U.S. chemicals are used in a wide variety of Belize, Benin, Bolivia, Bosnia-Herzegovina, Government, including facilities that are commercial industries, and include Botswana, Brazil, Brunei Darussalam*, contractor-operated. The CWCR also acetone, benzoyl peroxide and Bulgaria, Burkina Faso, Burundi require access for on-site inspections propylene glycol. Cameroon, Canada, Cape Verde, Chad, Chile, and monitoring by the OPCW, as China**, Colombia, Cook Islands*, Costa § 710.5 Authority. described in parts 716 and 717 of this Rica, Cote d’Ivoire (Ivory Coast), Croatia, subchapter. The CWCR (parts 710 through 729 of Cuba, Cyprus, Czech Republic this subchapter) implement certain Denmark, Dominica § 710.4 Overview of scheduled chemicals provisions of the Chemical Weapons Ecuador, El Salvador, Equatorial Guinea, and examples of affected industries. Convention under the authority of the Eritrea, Estonia, Ethiopia The following provides examples of Chemical Weapons Convention Fiji, Finland, France the types of industries that may be Implementation Act of 1998 (Act), the Gabon, Gambia, Georgia, Germany, Ghana, affected by the CWCR (parts 710 National Emergencies Act, the Greece, Guatemala, Guinea, Guyana through 729 of this subchapter). These International Emergency Economic Holy See*, Hungary examples are not exhaustive, and you Powers Act (IEEPA), as amended, and Iceland, India, Indonesia, Iran (Islamic should refer to parts 712 through 715 of the Export Administration Act of 1979, Republic of), Ireland, Italy this subchapter to determine your as amended, by extending verification Jamaica, Japan, Jordan obligations. and trade restriction requirements under Kazakhstan, Kenya, Kiribati, Korea (Republic (a) Schedule 1 chemicals are listed in Article VI and related parts of the of), Kyrgyzstan, Kuwait Supplement No. 1 to part 712 of this Verification Annex of the Convention to Laos (P.D.R.)*, Latvia, Lesotho, Libya, subchapter. Schedule 1 chemicals have U.S. persons. In Executive Order 13128 Liechtenstein, Lithuania, Luxembourg little or no use in industrial and of June 25, 1999, the President delegated Macedonia (The Former Yugoslav Republic agricultural industries, but may have authority to the Department of of), Madagascar, Malawi Malaysia, limited use for research, Commerce to promulgate regulations to Maldives, Mali, Malta, Marshall Islands, pharmaceutical, medical, public health, implement the Act, and consistent with Mauritania, Mauritius, Mexico, Micronesia or protective purposes. the Act, to carry out appropriate (Federated States of) Moldova (Republic (b) Schedule 2 chemicals are listed in functions not otherwise assigned in the of)*, Monaco, Mongolia, Morocco, Supplement No. 1 to part 713 of this Act but necessary to implement certain Mozambique subchapter. Although Schedule 2 reporting, monitoring and inspection Namibia, Nauru, Nepal, Netherlands, New chemicals may be useful in the requirements of the Convention and the Zealand, Nicaragua, Niger, Nigeria, Norway production of chemical weapons, they Act. Oman also have legitimate uses in areas such Pakistan, Palau, Panama, Papua New Guinea, § 710.6 Relationship between the Chemical as: Paraguay, Peru, Philippines, Poland, Weapons Convention Regulations and the Portugal (1) Flame retardant additives and Export Administration Regulations, the Qatar research; International Traffic in Arms Regulations, (2) Dye and photographic industries and the Alcohol, Tobacco, Firearms and Romania, Russian Federation, Rwanda (e.g., printing ink, ball point pen fluids, Explosives Regulations. Saint Kitts and Nevis, Saint Lucia, Saint copy mediums, paints, etc.); Certain obligations of the U.S. Vincent and the Grenadines, Samoa, San (3) Medical and pharmaceutical Government under the CWC pertain to Marino, Sao Tome and Principe, Saudi preparation (e.g., anticholinergics, exports and imports. The obligations on Arabia, Senegal, Serbia and Montenegro*, arsenicals, tranquilizer preparations); exports are implemented in the Export Seychelles, Sierra Leone, Singapore, (4) Metal plating preparations; Administration Regulations (EAR) (15 Slovak Republic*, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, (5) Epoxy resins; and CFR parts 730 through 799) and the Sudan, Suriname*, Swaziland, Sweden, (6) Insecticides, herbicides, International Traffic in Arms Switzerland fungicides, defoliants, and rodenticides. Regulations (ITAR) (22 CFR parts 120 Tajikistan, Tanzania (United Republic of), (c) Schedule 3 chemicals are listed in through 130). See in particular §§ 742.2 Thailand, Timor Leste (East Timor), Togo, Supplement No. 1 to part 714 of this and 742.18 and part 745 of the EAR, and Tonga, Trinidad and Tobago, Tunisia, subchapter. Although Schedule 3 Export Control Classification Numbers Turkey, Turkmenistan, Tuvalu chemicals may be useful in the 1C350, 1C351, 1C355 and 1C395 of the Uganda, Ukraine, United Arab Emirates, production of chemical weapons, they Commerce Control List (Supplement United Kingdom, United States, Uruguay, also have legitimate uses in areas such No. 1 to part 774 of the EAR). The as: Uzbekistan obligations on imports are implemented Venezuela, Vietnam (1) The production of: in the Chemical Weapons Convention (i) Resins; Yemen Regulations (§§ 712.2 and 713.1) and the (ii) Plastics; Zambia, Zimbabwe Alcohol, Tobacco, Firearms and (iii) Pharmaceuticals; * For export control purposes, these (iv) Pesticides; Explosives Regulations in 27 CFR part 447. destinations are identified using a different (v) Batteries; nomenclature under the Commerce Country (vi) Cyanic acid; Supplement No. 1 to Part 710—States Parties Chart in Supplement No. 1 to part 738 of the (vii) Toiletries, including perfumes to the Convention on the Prohibition of the Export Administration Regulations (15 CFR and scents; Development, Production, Stockpiling, and Parts 730 through 799). Use of Chemical Weapons and on Their (viii) Organic phosphate esters (e.g., ** For CWC States Parties purposes, China Destruction hydraulic fluids, flame retardants, includes Hong Kong and Macau. surfactants, and sequestering agents); List of States Parties as of November 24, 2004 and Afghanistan, Albania, Algeria, Andorra, (2) Leather tannery and finishing Argentina, Armenia, Australia, Austria, supplies. Azerbaijan

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SUPPLEMENT NO. 2 TO PART 710—DEFINITIONS OF PRODUCTION

Unscheduled discrete Schedule 1 chemicals Schedule 2 and Schedule 3 chemicals organic chemicals (UDOCs)

Produced by a biochemical or biologically mediated reaction. Produced by synthesis.*

Formation through chemical synthesis. All production steps in any units within the same plant Processing to extract and isolate Schedule 1 chemicals. which includes associated processes—purification, separation, extraction distillation or refining.** *Intermediates used in a single or multi-step process to produce another declared UDOC are not declarable. **Intermediates are subject to declaration, except ‘‘transient intermediates,’’ which are those chemicals in a transition state in terms of thermo- dynamics and kinetics, that exist only for a very short period of time, and cannot be isolated, even by modifying or dismantling the plant, or by al- tering process operating conditions, or by stopping the process altogether are not subject to declaration.

PART 711—GENERAL INFORMATION submission of all required documents in additional information that you feel is REGARDING REQUIREMENTS FOR accordance with all applicable relevant to the chemical or process DECLARATION, REPORT, ADVANCE provisions of the CWCR. involved (see part 718 of this subchapter NOTIFICATION, AND ELECTRONIC for provisions regarding treatment of § 711.3 Compliance review. FILING OF DECLARATIONS AND confidential business information). If REPORTS Periodically, BIS will request you are unable to provide all of the information from persons and facilities information required in paragraph (a)(2) Sec. subject to the CWCR to determine of this section, you should include an 711.1 Overviews of declaration, reporting, compliance with the reporting, explanation identifying the reasons or and advance notification requirements. declaration and notification 711.2 Who submits declarations, reports, deficiencies that preclude you from and advance notifications? requirements set forth herein. supplying the information. If BIS cannot 711.3 Compliance review. Information requested may relate to the make a determination based upon the 711.4 Assistance in determining your production, processing, consumption, information submitted, BIS will return obligations. export, import, or other activities the request to you and identify the 711.5 Numerical precision of submitted involving scheduled chemicals and additional information that is necessary data. unscheduled discrete organic chemicals to complete a chemical determination. 711.6 Where to obtain forms. described in parts 712 through 715 of BIS will provide a written response to 711.7 Where to submit declarations, this subchapter. Any person or facility your chemical determination request reports, and advance notifications. subject to the CWCR and receiving such 711.8 How to request authorization from within 10 working days of receipt of the BIS to make electronic submissions of a request for information will be request. declarations or reports. required to provide a response to BIS (2) Include the following information within the time-frame specified in the in each chemical determination request: Authority: 22 U.S.C. 6701 et seq.; E.O. request. This requirement does not, in 13128, 64 FR 36703, 3 CFR, 1999 Comp., p. (i) Date of request; 199. itself, impose a requirement to create (ii) Company name and complete new records or maintain existing street address; § 711.1 Overviews of declaration, records. The recordkeeping (iii) Point of contact; reporting, and advance notification requirements that apply to persons and requirements. (iv) Phone and facsimile number of facilities that are subject to the reporting contact; Parts 712 through 715 of the CWCR or declaration provisions of the CWCR (v) E-mail address of contact, if you (parts 710 through 729 of this are set forth in part 721. want an acknowledgment of receipt sent subchapter) describe the declaration, § 711.4 Assistance in determining your via e-mail; advance notification and reporting obligations. (vi) Chemical Name; requirements for Schedule 1, 2 and 3 chemicals and for unscheduled discrete (a) Determining if your chemical is (vii) Structural formula of the organic chemicals (UDOCs). For each subject to declaration, reporting or chemical, if the chemical is not type of chemical, the Convention advance notification requirements. (1) If specifically identified by name and requires annual declarations. If, after you need assistance in determining if chemical abstract service registry reviewing parts 712 through 715 of this your chemical is classified as a number in Supplements No. 1 to parts subchapter, you determine that you Schedule 1, Schedule 2, or Schedule 3 712 through 714 of the CWCR; and have declaration, advance notification chemical, or is an unscheduled discrete (viii) Chemical Abstract Service or reporting requirements, you may organic chemical, submit your written registry number, if assigned. obtain the appropriate forms by request for a chemical determination to (b) Other inquiries. If you need contacting the Bureau of Industry and BIS. Such requests may be sent via assistance in interpreting the provisions Security (BIS) (see § 711.6). facsimile to (703) 605–4425, e-mailed to of this subchapter or need assistance [email protected], or mailed to the Treaty with declaration, forms, reporting, § 711.2 Who submits declarations, reports, Compliance Division, Bureau of advance notification, inspection or and advance notifications? Industry and Security, U.S. Department facility agreement issues, contact BIS’s The owner, operator, or senior of Commerce, 1555 Wilson Boulevard, Treaty Compliance Division by phone at management official of a facility subject Suite 700, Arlington, Virginia 22209– (703) 605–4400. If you require a to declaration, report, or advance 2405. Your request should include the response from BIS in writing, submit a notification requirements under the information noted in paragraph (a)(2) of detailed request to BIS that explains CWCR (parts 710 through 729 of this this section to ensure an accurate your question, issue, or request. Send subchapter) is responsible for the determination. Also include any the request to the address or facsimile

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included in paragraph (a) of this section, authorization to submit declarations and user account (user name and password) or e-mail the request to [email protected]. reports electronically may be limited or telephonically by BIS. A Web-DESI user withdrawn by BIS at any time. There are account will be assigned to you only if § 711.5 Numerical precision of submitted data. no prerequisites for obtaining your company has certified to BIS that permission to submit electronically, nor you are authorized to act for it in Numerical information submitted in are there any limitations with regard to viewing, editing, or editing and declarations and reports is to be the types of declarations or reports that submitting electronic declarations and provided per applicable rounding rules are eligible for electronic submission. reports under the CWCR. in each part (i.e., parts 712 through 715 However, BIS may direct, for any of this subchapter) with a precision Note to § 711.8(b)(2)(i): When individuals reason, that any electronic declaration must have access to multiple Web-DESI equal to that which can be reasonably or report be resubmitted in writing, provided using existing documentation, accounts, their companies must identify such either in whole or in part. individuals on the approval request for each equipment, and measurement (1) Requesting approval to submit techniques. of these Web-DESI accounts. BIS will declarations and reports electronically. coordinate with such individuals to ensure § 711.6 Where to obtain forms. To submit declarations and reports that the assigned user name and password is (a) Forms to complete declarations electronically, you or your company the same for each account. and reports required by the CWCR may must submit a written request to BIS at (ii) Your company may reveal the be obtained by contacting: Treaty the address identified in § 711.6 of the facility, plant site or trading company Compliance Division, Bureau of CWCR. Both the envelope and letter password (USC password) only to Web- Industry and Security, U.S. Department must be marked ‘‘Attn: Electronic DESI users with valid passwords, their of Commerce, 1555 Wilson Blvd., Suite Declaration or Report Request.’’ Your supervisors, and employees or agents of 700, Arlington, VA 22209–2405, request should be on company the company with a commercial Telephone: (703) 605–4400. Forms and letterhead and must contain your name justification for knowing the password. forms software may also be downloaded or the company’s name, your mailing (iii) If you are an authorized Web- from the Internet at http://www.cwc.gov. address at the company, the name of the DESI account user, you may not: (b) If the amount of information you facility, plant site or trading company (A) Disclose your user name or are required to submit is greater than the and its U.S. Code Number, the address password to anyone; given form will allow, multiple copies of the facility, plant site or trading (B) Record your user name or of forms may be submitted. company (this address may be different password, either in writing or from the mailing address), the list of electronically; § 711.7 Where to submit declarations, individuals who are authorized to view, reports and advanced notifications. (C) Authorize another person to use edit, or edit and submit declarations and your user name or password; or Declarations, reports and advance reports on behalf of your company, and (D) Use your user name or password notifications required by the CWCR the telephone number and name and following termination, either by BIS or must be sent to: Treaty Compliance title of the official responsible for by your company, of your authorization Division, Bureau of Industry and certifying that each individual listed in or approval for Web-DESI use. Security, U.S. Department of Commerce, the request is authorized to view, edit, (iv) To prevent misuse of the Web- 1555 Wilson Blvd., Suite 700, Arlington, or edit and submit declarations and DESI account: VA 22209–2405, Telephone: (703) 605– reports on behalf of you or your (A) If Web-DESI user account 4400. Advanced notifications may also company. Additional information information (i.e., user name and be facsimiled to (703) 235–1481. required for submitting electronic password) is lost, stolen or otherwise Specific types of declarations and declarations and reports may be found compromised, the company and the reports and due dates are outlined in on BIS’s Web site at http:// user must report the loss, theft or Supplement No. 2 to parts 712 through www.cwc.gov. Once you have completed compromise of the user account 715 of the CWCR. and submitted the necessary information, immediately, by calling § 711.8 How to request authorization from certifications, you may be authorized by BIS at (703) 235–1335. Within two BIS to make electronic submissions of BIS to view, edit, or edit and submit business days of making the report, the declarations or reports. declarations and reports electronically. company and the user must submit (a) Scope. This section provides an Note to § 711.8(b)(1): You must submit a written confirmation to BIS at the optional method of submitting separate request for each facility, plant site or address provided in § 711.6 of the declarations or reports. Specifically, this trading company owned by your company CWCR. section applies to the electronic (e.g., each site that is assigned a unique U.S. (B) Your company is responsible for submission of declarations and reports Code Number). immediately notifying BIS whenever a required under the CWCR. If you choose (2) Assignment and use of passwords Web-DESI user leaves the employ of the to submit declarations and reports by for facilities, plant sites and trading company or otherwise ceases to be electronic means, all such electronic companies (USC password) and Web- authorized by the company to submit submissions must be made through the DESI user accounts (user name and declarations and reports electronically Web-Data Entry System for Industry password). (i) Each person, facility, on its behalf. (Web-DESI), which can be accessed on plant site or trading company (v) No person may use, copy, the CWC Web site at http:// authorized to submit declarations and appropriate or otherwise compromise a www.cwc.gov. reports electronically will be assigned a Web-DESI account user name or (b) Authorization. If you or your password (USC password) that must be password assigned to another person. company has a facility, plant site, or used in conjunction with the U.S.C. No person, except a person authorized trading company that has been assigned Number. Each individual authorized by access by the company, may use or copy a U.S. Code Number (USC Number), you BIS to view, edit, or edit and submit the facility, plant site or trading may submit declarations and reports declarations and reports electronically company password (USC password), nor electronically, once you have received for a facility, plant site or trading may any person steal or otherwise authorization from BIS to do so. An company will be assigned a Web-DESI compromise this password.

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(c) Electronic submission of 712.7 Amended declaration or report. (c)(1) The provisions of paragraphs (a) declarations and reports. 712.8 Declarations and reports returned and (b) of this section do not apply to (1) General instructions. Upon without action by BIS. the retention, ownership, possession, submission of the required certifications 712.9 Deadlines for submission of Schedule transfer, or receipt of a Schedule 1 and approval of the company’s request 1 declarations, reports, advance chemical by a department, agency, or notifications, and amendments. to use electronic submission, BIS will Supplement No. 1 to Part 712—Schedule 1 other entity of the United States, or by provide instructions on both the method Chemicals a person described in paragraph (c)(2) of for transmitting declarations and reports Supplement No. 2 to Part 712—Deadlines for this section, pending destruction of the electronically and the process for Submission of Schedule 1 Declarations, Schedule 1 chemical; submitting required supporting Advance Notifications, Reports, and (2) A person referred to in paragraph documents, if any. These instructions Amendments (c)(1) of this section is: may be modified by BIS from time to Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. (i) Any person, including a member of time. 1601 et seq.; 50 U.S.C. 1701 et seq.; E.O. the Armed Forces of the United States, (2) Declarations and reports. The 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. who is authorized by law or by an electronic submission of a declaration or 950, as amended by E.O. 13094, 63 FR 40803, appropriate officer of the United States report will constitute an official 3 CFR, 1998 Comp., p. 200; E.O. 13128, 64 to retain, own, possess transfer, or document as required under parts 712 FR 36703, 3 CFR, 1999 Comp., p. 199. receive the Schedule 1 chemical; or through 715 of the CWCR. Such (ii) In an emergency situation, any § 712.1 Round to zero rule that applies to otherwise non-culpable person if the submissions must provide the same activities involving Schedule 1 chemicals. information as written declarations and person is attempting to seize or destroy reports and are subject to the Facilities that produce, export or the Schedule 1 chemical. import mixtures containing less than recordkeeping provisions of part 720 of § 712.3 Initial declaration requirements for the CWCR. The company and Web-DESI 0.5% aggregate quantities of Schedule 1 chemicals (see Supplement No. 1 to this declared facilities which are engaged in the user submitting the declaration or report production of Schedule 1 chemicals for part) as unavoidable by-products or will be deemed to have made all purposes not prohibited by the CWC. impurities may round to zero and are representations and certifications as if Initial declarations submitted in the submission were made in writing by not subject to the provision of this part 712. Schedule 1 content may be February 2000 remain valid until the company and signed by the amended or rescinded. If you plan to calculated by volume or weight, certifying official. Electronic submission change/amend the technical description whichever yields the lesser percent. of a declaration or report will be of your facility submitted with your Note that such mixtures may be subject considered complete upon transmittal to initial declaration, you must submit an to the regulatory requirements of other BIS. amended initial declaration to BIS 200 federal agencies. (d) Updating. A company approved calendar days prior to implementing the for electronic submission of declarations § 712.2 Restrictions on the activities change (see 712.5(b)(1)(ii)). or reports under Web-DESI must involving Schedule 1 chemicals. promptly notify BIS of any change in its § 712.4 New Schedule 1 production (a) You may not produce Schedule 1 facility. name, ownership or address. If your chemicals for protective purposes. company wishes to have an individual (a) Establishment of a new Schedule (b) You may not import any Schedule added as a Web-DESI user, your 1 production facility. (1) If your facility 1 chemical unless: company must inform BIS and follow has never before been declared under the instructions provided by BIS. Your (1) The import is from a State Party; § 712.5 of the CWCR, or the initial company should conduct periodic (2) The import is for research, declaration for your facility has been reviews to ensure that the company’s medical, pharmaceutical, or protective withdrawn pursuant to § 712.5(f) of the designated certifying official and Web- purposes; CWCR, and you intend to begin DESI users are individuals whose (3) The import is in types and production of Schedule 1 chemicals at current responsibilities make it quantities strictly limited to those that your facility in quantities greater than necessary and appropriate that they act can be justified for such purposes; and 100 grams aggregate per year for for the company in either capacity. (4) You have notified BIS at least 45 research, medical, or pharmaceutical calendar days prior to the import, purposes, you must provide an initial PART 712—ACTIVITIES INVOLVING pursuant to § 712.6 of the CWCR. declaration (with a current detailed SCHEDULE 1 CHEMICALS technical description of your facility) to Note 1 to § 712.2: Pursuant to § 712.6, BIS in no less than 200 calendar days in Sec. advance notifications of import of saxitoxin advance of commencing such 712.1 Round to zero rule that applies to of 5 milligrams or less for medical/diagnostic production. Such facilities are activities involving Schedule 1 purposes must be submitted to BIS at least considered to be ‘‘new Schedule 1 chemicals. 3 days prior to import. 712.2 Restrictions on the activities production facilities’’ and are subject to involving Schedule 1 chemicals. Note 2 to § 712.2: For specific provisions an initial inspection within 200 712.3 Initial declaration requirements for relating to the prior advance notification of calendar days of submitting an initial declared facilities which are engaged in exports of all Schedule 1 chemicals, see declaration. the production of Schedule 1 chemicals § 745.1 of the Export Administration (2) New Schedule 1 production for purposes not prohibited by the CWC. Regulations (EAR) (15 CFR parts 730 through facilities that submit an initial 712.4 New Schedule 1 production facility. 799). For specific provisions relating to declaration pursuant to paragraph (a)(1) 712.5 Annual declaration requirements for license requirements for exports of Schedule of this section are considered approved 1 chemicals, see § 742.2 and § 742.18 of the facilities engaged in the production of Schedule 1 production facilities for Schedule 1 chemicals for purposes not EAR for Schedule 1 chemicals subject to the prohibited by the CWC. jurisdiction of the Department of Commerce purposes of the CWC, unless otherwise 712.6 Advance notification and annual and see the International Traffic in Arms notified by BIS within 30 days of receipt report of all exports and imports of Regulations (22 CFR parts 120 through 130) by BIS of that initial declaration. Schedule 1 chemicals to, or from, other for Schedule 1 chemicals subject to the (b) Types of declaration forms States Parties. jurisdiction of the Department of State. required. If your new Schedule 1

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production facility will produce in initial declaration completed and submit declarations pursuant to this excess of 100 grams aggregate of submitted pursuant to § 712.3 or § 712.4, section are considered approved Schedule 1 chemicals, you must you must submit an amended initial Schedule 1 production facilities for complete the Certification Form, Form declaration to BIS 200 calendar days purposes of the CWC, unless otherwise 1–1 and Form A. You must also provide prior to the change. Such amendments notified by BIS within 30 days of receipt a detailed technical description of the to your initial declaration must be made by BIS of an annual declaration on past new facility or its relevant parts, and a by completing a Certification Form, activities or annual declaration on detailed diagram of the declared areas in Form 1–1 and Form A, including the anticipated activities (see paragraphs the facility. new description of the facility. See (a)(1) and (a)(2) of this section). If your (c) Two hundred days after a new § 712.7 for additional instructions on facility does not produce more than 100 Schedule 1 production facility submits amending Schedule 1 declarations. grams aggregate of Schedule 1 its initial declaration, it is subject to the (2) Annual declaration on past chemicals, no approval by BIS is declaration requirements of § 712.5(a)(1) activities. If you are subject to the required. and (a)(2), and § 712.5(b)(1)(ii). declaration requirement of paragraph (g) Withdrawal of Schedule 1 initial (a)(1) of this section, you must complete declarations. A facility subject to § 712.5 Annual declaration requirements the Certification Form and Forms 1–1, §§ 712.3, 712.4 and 712.5 of the CWCR for facilities engaged in the production of 1–2, 1–2A, 1–2B, and Form A if your may withdraw its initial declaration at Schedule 1 chemicals for purposes not facility was involved in the production prohibited by the CWC. any time by notifying BIS in writing. A of Schedule 1 chemicals in the previous notification requesting the withdrawal (a) Declaration requirements. (1) calendar year. Form B is optional. of the initial declaration should be sent Annual declaration on past activities. (3) Annual declaration on anticipated on company letterhead to the address in You must complete the forms specified activities. If you anticipate that you will § 711.6 of the CWCR. BIS will in paragraph (b)(2) of this section if you produce at your facility in excess of 100 acknowledge receipt of the withdrawal produced at your facility in excess of grams aggregate of Schedule 1 chemicals of the initial declaration. Facilities 100 grams aggregate of Schedule l in the next calendar year you must withdrawing their initial declaration chemicals in the previous calendar year. complete the Certification Form and may not produce subsequently in excess As a declared Schedule 1 facility, in Forms 1–1, 1–4, and Form A. Form B is of 100 grams aggregate of Schedule 1 addition to declaring the production of optional. chemicals within a calendar year unless each Schedule 1 chemical that (c) Quantities to be declared. If you pursuant to § 712.4. comprises your aggregate production of produced in excess of 100 grams Schedule 1 chemicals, you must also aggregate of Schedule 1 chemicals in the § 712.6 Advance notification and annual declare any Schedule 1, Schedule 2, or previous calendar year, you must report of all exports and imports of Schedule 3 precursor used to produce declare the entire quantity of such Schedule 1 chemicals to, or from, other the declared Schedule 1 chemical. You production, rounded to the nearest States Parties. must further declare each Schedule 1 gram. You must also declare the Pursuant to the Convention, the chemical used (consumed) and stored at quantity of any Schedule 1, Schedule 2 United States is required to notify the your facility, and domestically or Schedule 3 precursor used to produce OPCW not less than 30 days in advance transferred from your facility during the the declared Schedule 1 chemical, of every export or import of a Schedule previous calendar year, whether or not rounded to the nearest gram. You must 1 chemical, in any quantity, to or from you produced that Schedule 1 chemical further declare the quantity of each another State Party. In addition, the at your facility. Schedule 1 chemical consumed or United States is required to provide a (2) Annual declaration on anticipated stored by, or domestically transferred report of all exports and imports of activities. You must complete the forms from, your facility, whether or not the Schedule 1 chemicals to or from other specified in paragraph (b)(3) of this Schedule 1 chemical was produced by States Parties during each calendar year. section if you anticipate that you will your facility, rounded to the nearest If you plan to export or import any produce at your facility more than 100 gram. In calculating the amount of quantity of a Schedule 1 chemical from grams aggregate of Schedule 1 chemicals Schedule 1 chemical you produced, or to your declared facility, undeclared in the next calendar year. If you are not consumed or stored, count only the facility or trading company, you must already a declared facility, you must amount of the Schedule 1 chemical(s) in notify BIS in advance of the export or complete an initial declaration (see a mixture, not the total weight of the import and complete an annual report of § 712.4) 200 calendar days before mixture (i.e., do not count the weight of exports and imports that actually commencing operations or increasing the solution, solvent, or container). occurred during the previous calendar production which will result in (d) For the purpose of determining if year. The United States will transmit to production of more than 100 grams a Schedule 1 chemical is subject to the OPCW the advance notifications and aggregate of Schedule 1 chemicals. declaration, you must declare a a detailed annual declaration of each (b) Declaration forms to be used. (1) Schedule 1 chemical that is an actual export or import of a Schedule 1 Initial declaration. (i) You must have intermediate, but not a transient chemical from/to the United States. completed the Certification Form, Form intermediate. Note that the advance notification and 1–1 and Form A if you produced at your (e) ‘‘Declared’’ Schedule 1 facilities annual report requirements of this facility in excess of 100 grams aggregate and routine inspections. Only facilities section do not relieve you of any of Schedule 1 chemicals in calendar that submitted a declaration pursuant to requirement to obtain a license for years 1997, 1998, or 1999. You must paragraph (a)(1) or (a)(2) of this section export of Schedule 1 chemicals subject have provided a detailed current or § 712.4 are considered ‘‘declared’’ to the EAR or ITAR or a license for technical description of your facility or Schedule 1 facilities. A ‘‘declared’’ import of Schedule 1 chemicals from its relevant parts including a narrative Schedule 1 facility is subject to initial the Department of Justice under the statement, and a detailed diagram of the and routine inspection by the OPCW Alcohol, Tobacco, Firearms and declared areas in the facility. (see part 716 of this subchapter). Explosives Regulations in 27 CFR part (ii) If you plan to change the technical (f) Approval of declared Schedule 1 447. Only ‘‘declared’’ facilities as description of your facility from your production facilities. Facilities that defined in § 712.5(d) are subject to

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initial and routine inspections pursuant requirement either under the EAR or the (c) Paragraph (a) of this section does to part 716 of this subchapter. ITAR, the exporter must have applied not apply to the activities and persons (a) Advance notification of exports for and been granted a license (see set forth in § 712.2(b). and imports. You must notify BIS at § 742.2 and § 742.18 of the EAR, or the least 45 calendar days prior to exporting ITAR at 22 CFR parts 120 through 130). § 712.7 Amended declaration or report. or importing any quantity of a Schedule (b) Annual report requirements for In order for BIS to maintain accurate 1 chemical, except for exports or exports and imports of Schedule 1 information on previously submitted imports of 5 milligrams or less of chemicals. Any person subject to the facility declarations, including Saxitoxin—B (7)—for medical/ CWCR that exported or imported any information necessary to facilitate diagnostic purposes, listed in quantity of Schedule 1 chemical to or inspection notifications and activities or Supplement No. 1 to this part to or from from another State Party during the to communicate declaration or report another State Party. Advance previous calendar year has a reporting requirements, amended declarations or notification of export or import of 5 requirement under this section. reports will be required under the milligrams or less of Saxitoxin for (1) Annual report on exports and following circumstances described in medical/diagnostic purposes only, must imports. Declared and undeclared this section. This section applies only to be submitted to BIS at least 3 calendar facilities, trading companies, and any annual declarations on past activities days prior to export or import. Note that other person subject to the CWCR that and annual reports on exports and advance notifications for exports may be exported or imported any quantity of a imports submitted for the previous sent to BIS prior to or after submission Schedule 1 chemical to or from another calendar year or annual declarations on of a license application to BIS for State Party in a previous calendar year anticipated activities covering the Schedule 1 chemicals subject to the must submit an annual report on current calendar year, unless specified EAR and controlled under ECCN 1C351 exports and imports. otherwise in a final inspection report. or to the Department of State for (2) Report forms to submit. (i) (a) Changes to information that Schedule 1 chemicals controlled under Declared Schedule 1 facilities. (A) If directly affect inspection of a declared the ITAR. Such advance notifications your facility declared production of a facility’s Annual Declaration of Past must be submitted separately from Schedule 1 chemical and you also Activities (ADPA) or Annual license applications. exported or imported any amount of Declaration on Anticipated Activities (1) Advance notifications should be that same Schedule 1 chemical, you (ADAA). You must submit an amended on company letterhead or must clearly must report the export or import by declaration or report to BIS within 15 identify the reporting entity by name of submitting either: days of any change in the following company, complete address, name of (1) Combined declaration and report. information: contact person and telephone and Submit, along with your declaration, (1) Types of Schedule 1 chemicals facsimile numbers, along with the Form 1–3 for that same Schedule 1 produced (e.g., additional Schedule 1 following information: chemical to be reported. Attach Form A, chemicals); (2) Quantities of Schedule 1 (i) Chemical name; as appropriate; Form B is optional; or (ii) Structural formula of the chemicals produced; (2) Report. Submit, separately from (3) Activities involving Schedule 1 chemical; your declaration, a Certification Form, (iii) Chemical Abstract Service (CAS) chemicals; and Form 1–1, and a Form 1–3 for each (4) End-use of Schedule 1 chemicals Registry Number; Schedule 1 chemical to be reported. (iv) Quantity involved in grams; (e.g., additional end-use(s)). Attach Form A, as appropriate; Form B (v) Planned date of export or import; (b) Changes to export or import (vi) Purpose (end-use) of export or is optional. information submitted in Annual import (i.e., research, medical, (B) If your facility declared Reports on Exports and Imports from pharmaceutical, or protective purposes); production of a Schedule 1 chemical undeclared facilities, trading companies (vii) Name(s) of exporter and and exported or imported any amount of and U.S. persons. You must submit an importer; a different Schedule 1 chemical, you amended report or amended combined (viii) Complete street address(es) of must report the export or import by declaration and report for changes to exporter and importer; submitting either: export or import information within 15 (ix) U.S. export license or control (1) Combined declaration and report. days of any change in the following number, if known; and Submit, along with your declaration, a export or import information: (x) Company identification number, Form 1–3 for each Schedule 1 chemical (1) Types of Schedule 1 chemicals once assigned by BIS. to be reported. Attach Form A, as exported or imported (e.g., additional (2) Send the advance notification by appropriate; Form B is optional; or Schedule 1 chemicals); facsimile to (703) 235–1481 or to the (2) Report. Submit, separately from (2) Quantities of Schedule 1 following address for mail and courier your declaration, a Certification Form, chemicals exported or imported; deliveries: Treaty Compliance Division, Form 1–1, and a Form 1–3 for each (3) Destination(s) of Schedule 1 Bureau of Industry and Security, Schedule 1 chemical to be reported. chemicals exported; Department of Commerce, 1555 Wilson Attach Form A, as appropriate; Form B (4) Source(s) of Schedule 1 chemicals Boulevard, Suite 700, Arlington, VA is optional. imported; 22209–2405, Attn: ‘‘Advance (ii) If you are an undeclared facility, (5) Activities involving exports and Notification of Schedule 1 Chemical trading company, or any other person imports of Schedule 1 chemicals; and [Export][Import].’’ subject to the CWCR, and you exported (6) End-use(s) of Schedule 1 (3) Upon receipt of the advance or imported any amount of a Schedule chemicals exported or imported (e.g., notification, BIS will inform the 1 chemical, you must report the export additional end-use(s)). exporter or importer of the earliest date or import by submitting a Certification (c) Changes to company and facility after which the shipment may occur Form, Form 1–1, and a Form 1–3 for information previously submitted to BIS under the advance notification each Schedule 1 chemical to be in the ADPA, the ADAA, and the procedure. To export a Schedule 1 reported. Attach Form A, as appropriate; Annual Report on Exports and Imports. chemical subject to an export license Form B is optional. (1) Internal company changes. You must

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submit an amended declaration or for the periods of the calendar year activities are not above the declaration report to BIS within 30 days of any during which each owned the facility thresholds set forth in §§ 712.4 and change in the following information: (‘‘part-year declarations’’), and if, at the 712.5 of the CWCR, the previous owner (i) Name of declaration/report point of time of transfer of ownership, the and the new owner must still submit contact (D–POC), including telephone previous owner’s activities are not declarations to BIS with the below number, facsimile number, and e-mail above the declaration thresholds set threshold quantities indicated. address; forth in §§ 712.4 and 712.5 of the (3) If the part-year declarations (ii) Name(s) of inspection point(s) of CWCR, the previous owner and the new submitted by the previous owner and contact (I–POC), including telephone owner must still submit declarations to the new owner are not, when combined, number(s), and facsimile number(s); BIS with the below threshold quantities above the declaration threshold set forth (iii) Company name (see § 712.7(c)(2) indicated. in §§ 712.4 and 712.5 of the CWCR, BIS of the CWCR for other company (3) If the part-year declarations will return the declarations without changes); submitted by the previous owner and action as set forth in § 712.8 of the (iv) Company mailing address; the new owner are not, when combined, CWCR. (v) Facility name; above the declaration threshold set forth (4) If part-year reports are submitted (vi) Facility owner, including in §§ 712.4 and 712.5 of the CWCR, BIS by the previous owner and the new telephone number, and facsimile will return the declarations without owner as required in § 712.5 of the number; and action as set forth in § 712.8 of the CWCR, BIS will submit both reports to (vii) Facility operator, including CWCR. the OPCW. telephone number, and facsimile (4) If part-year reports are submitted Note 1 to § 712.7(c): You must submit an number. by the previous owner and the new amendment to your most recently submitted (2) Change in ownership of company owner as required in § 712.5 of the declaration or report for declaring changes to or facility. If you sold or purchased a CWCR, BIS will submit both reports in internal company information (e.g., company declared facility or trading company, the OPCW. name change) or changes in ownership of a you must submit an amended (ii) Information that must be facility or trading company that have declaration or report to BIS, either occurred since the submission of this submitted to BIS by the company declaration or report. BIS will process the before the effective date of the change or purchasing a declared facility: amendment to ensure current information is within 30 days after the effective date of (A) Name of purchaser (i.e., name of on file regarding the facility or trading the change. The amended declaration or company purchasing a declared facility; company (e.g., for inspection notifications report must include the following (B) Mailing address of purchaser; and correspondence) and will also forward information: (C) Name of declaration point of the amended declaration to the OPCW to (i) Information that must be submitted contact (D–POC) for the purchaser, ensure that they also have current to BIS by the company selling a including telephone number, facsimile information on file regarding your facility or declared facility: number, and e-mail address; trading company. (A) Name of seller (i.e., name of the (D) Name of inspection points of Note 2 to § 712.7(c): You may notify BIS of company selling a declared facility); contact (I–POC) for the purchaser, change in ownership via a letter to the (B) Name of the declared facility and including telephone number(s), address given in § 711.6 of the CWCR. If you U.S. Code Number for that facility; facsimile number(s) and e-mail are submitting an amended declaration or (C) Name of purchaser (i.e., name of address(es); report, use Form B to address details the new company purchasing a declared (E) Name of the declared facility and regarding the sale of the declared facility or facility) and identity of contact person U.S. Code Number for that facility; trading company. for the purchaser, if known; (F) Location of the declared facility; Note 3 to § 712.7(c): For ownership (D) Date of ownership transfer or (G) Owner and operator of the changes, the declared facility or trading change; declared facility, including telephone company will maintain its original U.S. Code (E) Additional details on sale of the number, and facsimile number; and Number, unless the facility or trading declared facility relevant to ownership (H) Details on the next declaration or company is sold to multiple owners, at or operational control over any portion report submission on whether the new which time BIS will assign new U.S. Code of that facility (e.g., whether the entire owner will submit the declaration or Numbers for the new facilities. facility or only a portion of the declared report for the entire calendar year (d) Inspection-related amendments. If, facility has been sold to a new owner); during which the ownership change following completion of an inspection and occurred, or whether the previous (see parts 716 and 717 of the CWCR), (F) Details regarding whether the new owner and new owner will submit you are required to submit an amended owner will submit the next declaration separate declarations or reports for the declaration based on the final or report for the entire calendar year periods of the calendar year during inspection report, BIS will notify you in during which the ownership change which each owned the facility or trading writing of the information that will be occurred, or whether the previous company. required pursuant to §§ 716.10 and owner and new owner will submit (1) If the new owner is taking 717.5 of the CWCR. You must submit an separate declarations or reports for the responsibility for submitting the amended declaration to BIS no later periods of the calendar year during declaration or report for the entire than 45 days following your receipt of which each owned the facility or trading current year, it must have in its the BIS post inspection letter. company. possession the records for the period of (e) Non-substantive changes. If, (1) If the new owner is responsible for the year during which the previous subsequent to the submission of your submitting the declaration or report for owner owned the facility. declaration or report to BIS, you the entire current year, it must have in (2) If the previous owner and new discover one or more non-substantive its possession the records for the period owner will submit separate declarations typographical errors in your declaration of the year during which the previous for the periods of the calendar year or report, you are not required to submit owner owned the facility. during which each owned the facility, an amended declaration or report to BIS. (2) If the previous owner and new and, at the time of transfer of Instead, you may correct these errors in owner will submit separate declarations ownership, the previous owner’s a subsequent declaration or report.

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(f) Documentation required for contained therein is not required by the production during the previous calendar amended declarations or reports. If you CWCR, BIS will return the original year); are required to submit an amended declaration or report to you, without (b) Annual report on exports and declaration or report to BIS pursuant to action, accompanied by a letter imports of Schedule 1 chemicals from paragraph (a), (b), (c), or (d) of this explaining BIS’s decision. In order to facilities, trading companies, and other section, you must submit either: protect your confidential business persons (during the previous calendar (1) A letter containing all of the information, BIS will not maintain a year); corrected information required, in copy of any declaration or report that is (c) Combined declaration and report accordance with the provisions of this returned without action (RWA). (production of Schedule 1 chemicals, as section, to amend your declaration or However, BIS will maintain a copy of well as exports or imports of the same report; or the RWA letter. or different Schedule 1 chemicals, by a (2) Both of the following: declared facility during the previous (i) A new Certification Form (i.e., § 712.9 Deadlines for submission of calendar year); Form 1–1); and Schedule 1 declarations, reports, advance (d) Annual declaration on anticipated (ii) The specific forms (e.g., annual notifications, and amendments. activities (anticipated production of Schedule 1 chemicals in the next declaration on past activities) Declarations, reports, advance calendar year); containing the corrected information notifications, and amendments required (e) Advance notification of any export required, in accordance with the under this part must be postmarked by to or import from another State Party; provisions of this part, to amend your the appropriate date identified in declaration or report. (f) Initial declaration of a new Supplement No. 2 to this part 712. Schedule 1 chemical production § 712.8 Declarations and reports returned Required declarations, reports, advance facility; and without action by BIS. notifications, and amendments include: (g) Amended declaration or report, If you submit a declaration or report (a) Annual declaration on past including combined declaration and and BIS determines that the information activities (Schedule 1 chemical report.

SUPPLEMENT NO. 1 TO PART 712—SCHEDULE 1 CHEMICALS

(CAS registry number)

A. Toxic Chemicals (1) O-Alkyl (≤C10, incl. cycloalkyl) alkyl (Me, Et, n-Pr or i-Pr)-phosphonofluoridates: e.g. Sarin: O-Isopropyl methylphosphonofluoridate ...... (107–44–8) Soman: O-Pinacolyl methylphosphonofluoridate ...... (96–64–0) (2) O-Alkyl (≤C10, incl. cycloalkyl) N,N-dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidocyanidates: e.g. Tabun: O-Ethyl N,N-dimethyl phosphoramidocyanidate ...... (77–81–6) (3) O-Alkyl (H or ≤C10, incl. cycloalkyl) S-2-dialkyl (Me, Et, n-Pr or i-Pr)-aminoethyl alkyl (Me, Et, n-Pr or i-Pr) phosphonothiolates and corresponding alkylated or protonated salts: e.g. VX: O-Ethyl S-2-diisopropylaminoethyl methyl phosphonothiolate ...... (50782–69–9) (4) Sulfur mustards: 2-Chloroethylchloromethylsulfide ...... (2625–76–5) Mustard gas: Bis(2-chloroethyl)sulfide ...... (505–60–2) Bis(2-chloroethylthio)methane ...... (63869–13–6) Sesquimustard: 1,2-Bis(2-chloroethylthio)ethane ...... (3563–36–8) 1,3-Bis(2-chloroethylthio)-n-propane ...... (63905–10–2) 1,4-Bis(2-chloroethylthio)-n-butane ...... (142868–93–7) 1,5-Bis(2-chloroethylthio)-n-pentane ...... (142868–94–8) Bis(2-chloroethylthiomethyl)ether ...... (63918–90–1) O-Mustard: Bis(2-chloroethylthioethyl)ether ...... (63918–89–8) (5) Lewisites: Lewisite 1: 2-Chlorovinyldichloroarsine ...... (541–25–3) Lewisite 2: Bis(2-chlorovinyl)chloroarsine ...... (40334–69–8) Lewisite 3: Tris(2-chlorovinyl)arsine ...... (40334–70–1) (6) Nitrogen mustards: HN1: Bis(2-chloroethyl)ethylamine ...... (538–07–8) HN2: Bis(2-chloroethyl)methylamine ...... (51–75–2) HN3: Tris(2-chloroethyl)amine ...... (555–77–1) (7) Saxitoxin ...... (35523–89–8) (8) Ricin ...... (9009–86–3) B. Precursors (9) Alkyl (Me, Et, n-Pr or i-Pr) phosphonyldifluorides: e.g. DF: Methylphosphonyldifluoride ...... (676–99–3) (10) O-Alkyl (H or ≤C10, incl. cycloalkyl) O-2-dialkyl (Me, Et, n-Pr or i-Pr)-aminoethyl alkyl (Me, Et, N-Pr or i-Pr) phosphonites and corresponding alkylated or protonated salts: e.g. QL: O-Ethyl O-2-diisopropylaminoethyl methylphosphonite ...... (57856–11–8) (11) Chlorosarin: O-Isopropyl methylphosphonochloridate ...... (1445–76–7) (12) Chlorosoman: O-Pinacolyl methylphosphonochloridate ...... (7040–57–5) Notes to Supplement No. 1: Note 1: Note that the following Schedule 1 chemicals are controlled for export purposes under the Export Administration Regulations (see part 774 of the EAR, the Commerce Control List): Saxitoxin (35523–89–8) and Ricin (9009–86–3). Note 2: All Schedule 1 chemicals not listed in Note 1 to this Supplement are controlled for export purposes by the Office of Defense Trade Control of the Department of State under the International Traffic in Arms Regulations (22 CFR parts 120 through 130).

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SUPPLEMENT NO. 2 TO PART 712—DEADLINES FOR SUBMISSION OF SCHEDULE 1 DECLARATIONS, ADVANCE NOTIFICATIONS, REPORTS, AND AMENDMENTS

Declarations, advance notifications and reports Applicable forms Due dates

Annual Declaration on Past Activities (previous Certification, 1–1, 1–2, 1–2A, 1–2B, A (as ap- February 28th of the year following any cal- calendar year)—Declared facility (past pro- propriate), B. endar year in which more than 100 grams duction) (optional). aggregate of Schedule 1 chemicals were produced. Annual report on exports and imports (previous Certification, 1–1, 1–3, A (as appropriate), B February 28th of the year following any cal- calendar year) (facility, trading company, (optional). endar year in which Schedule 1 chemicals other persons). were exported or imported. Combined Declaration and Report ...... Certification, 1–1, 1–2, 1–2A, 1–2B, 1–3, A February 28th of the year following any cal- (as appropriate), B (optional). endar year in which Schedule 1 chemicals were produced, exported, or imported. Annual Declaration on Anticipated Activities Certification, 1–1, 1–4, A (as appropriate), B September 3rd of the year prior to any cal- (next calendar year). (optional). endar year in which Schedule 1 activities are anticipated to occur. Advance Notification of any export to or import Notify on letterhead. See § 712.6 of the 45 calendar days prior to any export or import from another State Party. CWCR. of Schedule 1 chemicals, except 3 days prior to export or import of 5 milligrams or less of saxitoxin for medical/diagnostic pur- poses. Initial Declaration of a new Schedule 1 facility Certification, 1–1, A (as appropriate), B (op- 200 calendar days prior to producing in ex- (technical description). tional). cess of 100 grams aggregate of Schedule 1 chemicals. Amended Declaration ...... Certification, 1–1, 1–2, 1–2A ...... —15 calendar days after change in informa- —Chemicals/activities: § 712.7(a) ...... tion —Company information: § 712.7(c) ...... —30 calendar days after change in informa- —Post-inspection letter: § 712.7(d) ...... tion —45 calendar days after receipt of letter Amended Report § 712.7(b) ...... Certification, 1–1, 1–3, A (as appropriate), B —15 calendar days after change in informa- (optional. tion Combined Declaration & Report ...... Certification, 1–1, 1–2, 1–2A 1–3, (as appro- —15 calendar days after change in informa- priate), B (optional). tion

PART 713—ACTIVITIES INVOLVING § 713.1 Prohibition on exports and imports that such mixtures may be subject to the SCHEDULE 2 CHEMICALS of Schedule 2 chemicals to and from States regulatory requirements of other federal not Party to the CWC. agencies); Sec. (a) You may not export any Schedule (3) Mixtures containing Schedule 2B 713.1 Prohibition on exports and imports of 2 chemical (see Supplement No. 1 to chemicals if the concentration of each Schedule 2 chemicals to and from States this part) to any destination or import Schedule 2B chemical in the mixture is not Party to the CWC. any Schedule 2 chemical from any 10% or less by weight (note, however, 713.2 Annual declaration requirements for destination other than a State Party to that such mixtures may be subject to the plant sites that produce, process or the Convention. See Supplement No. 1 regulatory requirements of other federal consume Schedule 2 chemicals in excess to part 710 of this subchapter for a list agencies); or of specified thresholds. of States that are party to the (4) Products identified as consumer 713.3 Annual declaration and reporting Convention. goods packaged for retail sale for requirements for exports and imports of Note to paragraph (a): See § 742.18 of the personal use or packaged for individual Schedule 2 chemicals. use. 713.4 Advance declaration requirements for Export Administration Regulations (15 CFR part 742) for prohibitions that apply to additionally planned production, § 713.2 Annual declaration requirements exports of Schedule 2 chemicals to States not processing or consumption of Schedule for plant sites that produce, process or Party to the CWC. 2 chemicals. consume Schedule 2 chemicals in excess 713.5 Amended declaration or report. (b) Paragraph (a) of this section does of specified thresholds. 713.6 Declarations and reports returned not apply to: (a) Declaration of production, without action by BIS. (1) The export or import of a Schedule processing or consumption of Schedule 713.7 Deadlines for submission of Schedule 2 chemical to or from a State not Party 2 chemicals for purposes not prohibited 2 declarations, reports, and amendments. to the CWC by a department, agency, or by the CWC. Supplement No. 1 To Part 713—Scgedyke 2 other entity of the United States, or by (1) Quantities of production, Chemicals any person, including a member of the processing or consumption that trigger Supplement No. 2 To Part 713—Deadlines Armed Forces of the United States, who declaration requirements. You must For Submission of Schedule 2 is authorized by law, or by an complete the forms specified in Declarations, Reports, And Amendments appropriate officer of the United States paragraph (b) of this section if you have Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. to transfer or receive the Schedule 2 been or will be involved in the 1601 et seq.; 50 U.S.C. 1701 et seq; E.O. chemical; following activities: 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. (2) Mixtures containing Schedule 2A (i) Annual declaration on past 950, as amended by E.O. 13094, 63 FR 40803, chemicals, if the concentration of each activities. (A) You produced, processed 3 CFR, 1998 Comp., p. 200; E.O. 13128, 64 Schedule 2A chemical in the mixture is or consumed at one or more plants on FR 36703, 3 CFR, 1999 Comp., p. 199. 1% or less by weight (note, however, your plant site during any of the

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previous three calendar years, a ‘‘0’’ production because you did not produce or more and exceeds the quantity Schedule 2 chemical in excess of any of BZ above the applicable threshold in threshold detailed in paragraphs the following declaration threshold calendar year 2004. Since the plant site did (a)(1)(i)(A)(1) through (3) of this section. not engage in any other declarable activity (iii) Determining declaration quantities: (i.e., consumption, processing) in the 2002– (1) 1 kilogram of chemical BZ: 3– 2004 declaration period, you would leave requirements for production, processing Quinuclidinyl benzilate (see Schedule blank questions 2–3.2 and 2–3.3 on Form 2– and consumption. If the total quantity of 2, paragraph A.3 in Supplement No. 1 3. Note that declaring a ‘‘0’’ production a Schedule 2 chemical produced, to this part); quantity for 2004, as opposed to leaving the processed or consumed at a plant on (2) 100 kilograms of chemical PFIB: question blank, permits BIS to distinguish your plant site, including mixtures that 1,1,3,3,3–Pentafluoro- the activity that triggered the declaration contain 30% or more concentration of a 2(trifluoromethyl)-1-propene or 100 requirement from activities that were not Schedule 2 chemical, exceeds the declarable during that period. kilograms of chemical Amiton: 0,0- applicable declaration threshold set Diethyl S-[2-(diethylamino) ethyl] (ii) Annual declaration on anticipated forth in paragraphs (a)(1)(i)(A)(1) phosphorothiolate and corresponding activities. You anticipate that you will through (3) of this section, you have a alkylated or protonated salts (see produce, process or consume at one or declaration requirement. For example, if Schedule 2, paragraphs A.1 and A.2 in more plants on your plant site during during calendar year 2001, a plant on Supplement No. 1 to this part); or the next calendar year, a Schedule 2 your plant site produced a mixture (3) 1 metric ton of any chemical listed chemical in excess of the applicable containing 300 kilograms of thiodiglycol in Schedule 2, Part B (see Supplement declaration threshold set forth in in a concentration of 32% and also No. 1 to this part). paragraphs (a)(1)(i)(A)(1) through (3) of produced 800 kilograms of thiodiglycol, (B) In order to trigger a declaration this section. the total amount of thiodiglycol requirement for a past activity (i.e., produced at that plant for CWCR Note to paragraph (a)(1)(ii): A null ‘‘0’’ purposes would be 1100 kilograms, production, processing or consumption) declaration is not required if you do not plan involving a Schedule 2 chemical, a to produce, process or consume a Schedule which exceeds the declaration threshold plant on your plant site must have 2 chemical in the next calendar year. of 1 metric ton for that Schedule 2 exceeded the applicable declaration chemical. You must declare past (2) Schedule 2 chemical production. production of thiodiglycol at that plant threshold for that particular activity (i) For the purpose of determining during one or more of the previous three site for calendar year 2001. If, on the Schedule 2 production, you must other hand, a plant on your plant site calendar years. For example, if a plant include all steps in the production of a on your plant site produced 800 processed a mixture containing 300 chemical in any units within the same kilograms of thiodiglycol in a kilograms of thiodiglycol and consumed plant through chemical reaction, 300 kilograms of the same Schedule 2 concentration of 25% and also including any associated processes (e.g., processed 800 kilograms of thiodiglycol chemical, during the previous calendar purification, separation, extraction, year, you would not have a declaration in other than mixture form, the total distillation, or refining) in which the amount of thiodiglycol processed at that requirement based on these activities, chemical is not converted into another because neither activity at your plant plant for CWCR purposes would be 800 chemical. The exact nature of any kilograms and would not trigger a would have exceeded the declaration associated process (e.g., purification, threshold of 1 metric ton for that declaration requirement. This is because etc.) is not required to be declared. the concentration of thiodiglycol in the Schedule 2 chemical. However, a (ii) For the purpose of determining if mixture is less than 30% and therefore declaration requirement would apply if a Schedule 2 chemical is subject to did not have to be ‘‘counted’’ and added an activity involving a Schedule 2 declaration, you must declare an to the other 800 kilograms of processed chemical at the plant exceeded the intermediate Schedule 2 chemical, but thiodiglycol at that plant. declaration threshold in an earlier year not a transient intermediate Schedule 2 (b) Types of declaration forms to be (i.e., during the course of any other chemical. used. (1) Annual declaration on past calendar year within the past three (3) Mixtures containing a Schedule 2 activities. You must complete the calendar years), as indicated in the chemical. (i) Mixtures that must be Certification Form and Forms 2–1, 2–2, example provided in the note to this counted. You must count the quantity of 2–3, 2–3A, and Form A if one or more paragraph. each Schedule 2 chemical in a mixture, plants on your plant site produced, Note to paragraph (a)(1)(i)(B): To when determining the total quantity of processed or consumed more than the determine whether or not you have an annual a Schedule 2 chemical produced, applicable threshold quantity of a declaration on past activities requirement for processed, or consumed at a plant on Schedule 2 chemical described in Schedule 2 chemicals, you must determine your plant site, if the concentration of paragraphs (a)(1)(i)(A)(1) through (3) of whether you produced, processed or each Schedule 2 chemical in the this section in any of the three previous consumed a Schedule 2 chemical above the applicable threshold at one or more plants on mixture is 30% or more by volume or calendar years. Form B is optional. If your plant site in any one of the three by weight, whichever yields the lesser you are subject to annual declaration previous calendar years. For example, for the percent. Do not count a Schedule 2 requirements, you must include data for 2004 annual declaration on past activities chemical in the mixture that represents the previous calendar year only. period, if you determine that one plant on less than 30% by volume or by weight. (2) Annual declaration on anticipated your plant site produced greater than 1 (ii) How to count the quantity of each activities. You must complete the kilogram of the chemical BZ in calendar year Schedule 2 chemical in a mixture. If Certification Form and Forms 2–1, 2–2, 2002, and no plants on your plant site your mixture contains 30% or more 2–3, 2–3A, 2–3C, and Form A if you produced, processed or consumed any concentration of a Schedule 2 chemical, plan to produce, process, or consume at Schedule 2 chemical above the applicable you must count the quantity (weight) of any plant on your plant site a Schedule threshold in calendar years 2003 or 2004, you still have a declaration requirement under each Schedule 2 chemical in the 2 chemical above the applicable this paragraph for the previous calendar year mixture, not the total weight of the threshold set forth in paragraphs (2004). However, you must only declare on mixture. You must separately declare (a)(1)(i)(A)(1) through (3) of this section Form 2–3 (question 2–3.1), production data each Schedule 2 chemical with a during the following calendar year. for calendar year 2004. You would declare concentration in the mixture that is 30% Form B is optional.

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(c) Quantities to be declared. (1) pursuant to paragraph (a)(1) of this export or import of Schedule 2 chemicals Production, processing and section is a ‘‘declared’’ plant site. contained in reports. The U.S. Government consumption of a Schedule 2 chemical (e) Declared Schedule 2 plant sites will add all export and import information above the declaration threshold. subject to initial and routine contained in reports to export and import (i) Annual declaration on past inspections. A ‘‘declared’’ Schedule 2 information contained in declarations to establish the U.S. national aggregate activities. If you are required to plant site is subject to initial and routine declaration on exports and imports. complete forms pursuant to paragraph inspection by the Organization for the (a)(1)(i) of this section, you must declare Prohibition of Chemical Weapons if it Note to paragraphs (a)(1) and (2): Declared the aggregate quantity resulting from produced, processed or consumed in and undeclared plant sites must count, for each type of activity (production, any of the three previous calendar years, declaration or report purposes, all exports processing or consumption) from each or is anticipated to produce, process or from and imports to the entire plant site, not plant on your plant site that exceeds the consume in the next calendar year, in only from or to individual plants on the plant applicable threshold for that Schedule 2 excess of ten times the applicable site. chemical. Do not include in these declaration threshold set forth in aggregate production, processing, and paragraphs (a)(1)(i)(A)(1) through (3) of (b) Quantities of exports or imports consumption quantities any data from this section (see part 716 of this that trigger a declaration or report plants on the plant site that did not subchapter). A ‘‘declared’’ Schedule 2 requirement. (1) You have a declaration individually produce, process or plant site that has received an initial or report requirement and must consume a Schedule 2 chemical in inspection is subject to routine complete the forms specified in amounts greater than the applicable inspection. paragraph (d) of this section if you threshold. For example, if a plant on exported or imported a Schedule 2 your plant site produced a Schedule 2 § 713.3 Annual declaration and reporting chemical in excess of the following chemical in an amount greater than the requirements for exports and imports of threshold quantities: Schedule 2 chemicals. applicable declaration threshold during (i) 1 kilogram of chemical BZ: 3- the previous calendar year, you would (a) Declarations and reports of exports Quinuclidinyl benzilate (See Schedule have to declare only the production and imports of Schedule 2 chemicals. 2, paragraph A.3 included in quantity from that plant, provided that (1) Declarations. A Schedule 2 plant site Supplement No. 1 to this part); that is declared because it produced, the total amount of the Schedule 2 (ii) 100 kilograms of chemical PFIB: chemical processed or consumed at the processed or consumed a Schedule 2 chemical at one or more plants above 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)- plant did not exceed the applicable 1-propene or 100 kilograms of Amiton : declaration threshold during any one of the applicable threshold set forth in paragraph (b) of this section, and also O,O Diethyl S-[2(diethylamino)ethyl] the previous three calendar years. If in phosphorothiolate and corresponding the previous calendar year your exported from or imported to the plant site that same Schedule 2 chemical alkylated or protonated salts (see production, processing and Schedule 2, paragraphs A.1 and A.2 consumption activities all were below above the applicable threshold, must submit export and import information included in Supplement No.1 to this the applicable declaration threshold, but part); or your declaration requirement is as part of its declaration. triggered because of production (2) Reports. The following persons (iii) 1 metric ton of any chemical activities occurring in an earlier year, must submit a report if they listed in Schedule 2, Part B (see you would declare ‘‘0’’ only for the individually exported or imported a Supplement No.1 to this part). declared production activities. Schedule 2 chemical above the (2) Mixtures containing a Schedule 2 (ii) Annual declaration on anticipated applicable threshold indicated in chemical. The quantity of each activities. If you are required to paragraph (b) of this section: Schedule 2 chemical contained in a complete forms pursuant to paragraph (i) A declared plant site that exported mixture must be counted for the (a)(1)(ii) of this section, you must or imported a Schedule 2 chemical that declaration or reporting of an export or declare the aggregate quantity of any was different than the Schedule 2 import only if the concentration of each Schedule 2 chemical that you plan to chemical produced, processed or Schedule 2 chemical in the mixture is produce, process or consume at any consumed at one or more plants at the 30% or more by volume or by weight, plant(s) on your plant site above the plant site above the applicable whichever yields the lesser percent. You applicable thresholds set forth in declaration threshold ; must declare separately each Schedule 2 paragraphs (a)(1)(i)(A)(1) through (3) of (ii) An undeclared plant site; chemical whose concentration in the this section during the next calendar (iii) A trading company; or mixture is 30% or more. year. Do not include in these anticipated (iv) Any other person subject to the aggregate production, processing, and CWCR. Note 1 to paragraph (b)(2): See consumption quantities any data from § 713.2(a)(2)(ii) for information on counting Note to paragraphs (a)(1) and (a)(2)(i): A amounts of Schedule 2 chemicals contained plants on the plant site that you do not declared Schedule 2 plant site may need to in mixtures and determining declaration and anticipate will individually produce, declare exports or imports of Schedule 2 report requirements. process or consume a Schedule 2 chemicals that it produced, processed or chemical in amounts greater than the consumed above the applicable threshold Note 2 to paragraph (b)(2): The ‘‘30% and applicable thresholds. and also report exports or imports of different above’’ mixtures rule applies only for (2) Rounding. For the chemical BZ, Schedule 2 chemicals that it did not produce, declaration and report purposes. This rule report quantities to the nearest process or consume above the applicable does not apply for purposes of determining threshold quantities. The report may be hundredth of a kilogram (10 grams). For whether the export of your mixture to a non- submitted to BIS either with or separately State Party requires an End-Use Certificate or PFIB and the Amiton family, report from the annual declaration on past activities for determining whether you need an export quantities to the nearest 1 kilogram. For (see § 713.3(d) of the CWCR). license from BIS (see § 742.2, § 742.18 and all other Schedule 2 chemicals, report § 745.2 of the Export Administration quantities to the nearest 10 kilograms. Note to paragraph (a)(2): The U.S. Regulations) or from the Department of State (d) ‘‘Declared’’ Schedule 2 plant site. Government will not submit to the OPCW (see the International Traffic in Arms A plant site that submitted a declaration company-specific information relating to the Regulations (22 CFR parts 120 through130)).

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(c) Declaration and report company, or other location more than under § 713.2(a)(1)(ii) by more than requirements. (1) Annual declaration on the applicable threshold of a Schedule three months; or past activities. A plant site described in 2 chemical in the previous calendar (vi) You plan to increase your paragraph (a)(1) that has an annual year, you must declare or report all production, processing, or consumption declaration requirement for production, exports and imports of that chemical by of a Schedule 2 chemical by a declared processing, or consumption of a country of destination or country of plant site by 20 percent or more above Schedule 2 chemical for the previous origin, respectively, and indicate the that declared under § 713.2(a)(1)(ii). calendar year also must declare the total amount exported to or imported (2) If you must submit a declaration export and/or import of that same from each country. on additionally planned activities Schedule 2 chemical if the amount (2) Rounding. For purposes of because you plan to engage in any of the exceeded the applicable threshold set declaring or reporting exports and activities listed in paragraphs (a)(1)(i) forth in paragraph (b) of this section. imports of a Schedule 2 chemical, you through (vi) of this section, you also The plant site must declare such export must total all exports and imports per should declare changes to your or import information as part of its calendar year per recipient or source declaration relating to the following annual declaration of past activities. and then round as follows: for the activities. You do not have to submit an (2) Annual report on exports and chemical BZ, the total quantity for each additionally planned declaration if you imports. Declared plant sites described country of destination or country of are only changing the following non- in paragraph (a)(2)(i) of this section, and origin (source) should be reported to the quantitative activities: undeclared plant sites, trading nearest hundredth of a kilogram (10 (i) Changes to the plant’s production companies or any other person grams); for PFIB and Amiton and capacity; (described in paragraphs (a)(2)(ii) corresponding alkylated or protonated (ii) Changes or additions to the through (iv) of this section) subject to salts, the quantity for each destination product group codes for the plant site or the CWCR that exported or imported a or source should be reported to the the plant(s); Schedule 2 chemical in a previous nearest 1 kilogram; and for all other (iii) Changes to the plant’s activity calendar year in excess of the applicable Schedule 2 chemicals, the total quantity status (i.e., dedicated, multipurpose, or thresholds set forth in paragraph (b) of for each destination or source should be other status); this section must submit an annual reported to the nearest 10 kilograms. (iv) Changes to the plant’s report on such exports or imports. multipurpose activities; (d) Types of declaration and report § 713.4 Advance declaration requirements (v) Changes to the plant site’s status forms to be used. (1) Annual declaration for additionally planned production, relating to domestic transfer of the on past activities. If you are a declared processing, or consumption of Schedule 2 chemical; Schedule 2 plant site, as described in chemicals. (vi) Changes to the plant site’s paragraph (a)(1) of this section, you (a) Declaration requirements for purposes for which the chemical will be must complete Form 2–3B, in addition additionally planned activities. (1) You produced, processed or consumed; or to the forms required by § 713.2(b)(1) of must declare additionally planned (vii) Changes to the plant site’s status the CWCR, for each declared Schedule production, processing, or consumption relating to exports of the chemical or the 2 chemical exported or imported above of Schedule 2 chemicals after the annual addition of new countries for export. the applicable threshold in the previous declaration on anticipated activities for (b) Declaration forms to be used. If calendar year. the next calendar year has been you are required to declare additionally (2) Annual report on exports and delivered to BIS if: planned activities pursuant to paragraph imports. (i) If you are a declared plant (i) You plan that a previously (a) of this part, you must complete the site, as described in paragraph (a)(2)(i) undeclared plant on your plant site Certification Form and Forms 2–1, 2–2, of this section, you may fulfill your under § 713.2(a)(1)(ii) will produce, 2–3, and 2–3C as appropriate. Such annual reporting requirements by: process, or consume a Schedule 2 forms are due to BIS at least 15 days (A) Submitting, with your annual chemical above the applicable prior to beginning the additional declaration on past activities, a Form 2– declaration threshold; activity. 3B for each Schedule 2 chemical you (ii) You plan to produce, process, or exported or imported above the consume at a plant declared under § 713.5 Amended declaration or report. applicable threshold. Attach Form A, as § 713.2(a)(1)(ii) an additional Schedule In order for BIS to maintain accurate appropriate; Form B is optional; or 2 chemical above the applicable information on previously submitted (B) Submitting, separately from your declaration threshold; plant site declarations, including annual declaration on past activities, a (iii) You plan an additional activity information necessary to facilitate Certification Form, Form 2–1, and Form (production, processing, or inspection notifications and activities or 2–3B for each Schedule 2 chemical you consumption) at your declared plant to communicate declaration or report exported or imported above the above the applicable declaration requirements, amended declarations or applicable threshold. Attach Form A, as threshold for a chemical declared under reports will be required under the appropriate; Form B is optional. § 713.2(a)(1)(ii); circumstances described in this section. (ii) If you are an undeclared plant site, (iv) You plan to increase the This section applies only to annual trading company or any other person production, processing, or consumption declarations on past activities submitted subject to the CWCR, you must of a Schedule 2 chemical by a plant for the three previous calendar years, complete the Certification Form, Form declared under § 713.2(a)(1)(ii) from the annual reports on exports and imports 2–1, and Form 2–3B for each Schedule amount exceeding the applicable for the previous calendar year or annual 2 chemical you exported or imported declaration threshold to an amount declarations on anticipated activities above the applicable threshold. Attach exceeding the applicable inspection covering the current calendar year, Form A, as appropriate; Form B is threshold (see § 716.1(b)(2) of the unless specified otherwise in a final optional. CWCR); inspection report. (e) Quantities to be declared. (1) (v) You plan to change the starting or (a) Changes to information that Calculations. If you exported from or ending date of anticipated production, directly affect inspection of a declared imported to your plant site, trading processing, or consumption declared plant site’s Annual Declaration of Past

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Activities (ADPA) or Combined Annual number(s), facsimile number(s) and e- or reports for the periods of the calendar Declaration and Report. You must mail address(es); year during which each owned the plant submit an amended declaration or (iii) Company name (see paragraph site, and, if at the time of transfer of report to BIS within 15 days of any (c)(2) of this section for other company ownership, the previous owner’s change in the following information: changes); activities are not above the declaration (1) Types of Schedule 2 chemicals (iv) Company mailing address; or report thresholds set forth in produced, processed, or consumed; (v) Plant site name; § 713.2(a)(1)(i)(A)(1) through (3) and (2) Quantities of Schedule 2 (vi) Plant site owner, including § 713.3(b)(1)(i) through (iii) of the chemicals produced, processed, or telephone number, and facsimile CWCR, respectively, the previous owner consumed; number; and the new owner must still submit (3) Activities involving Schedule 2 (vii) Plant site operator, including declarations to BIS with the below telephone number, and facsimile chemicals (production, processing, threshold quantities indicated. consumption); number; (3) If the part-year declarations (4) End-use of Schedule 2 chemicals (viii) Plant name; (ix) Plant owner, including telephone submitted by the previous owner and (e.g., additional end-use(s)); the new owner are not, when combined, (5) Product group codes for Schedule number, and facsimile number; and (x) Plant operator, including above the declaration thresholds set 2 chemicals produced, processed, or forth in § 713.2(a)(1)(i)(A)(1) through (3) consumed; telephone number and facsimile of the CWCR, BIS will return the (6) Production capacity for number. declarations without action as set forth manufacturing a specific Schedule 2 (2) Change in ownership of company, chemical at particular plant site; plant site, or plant. If you sold or in § 713.6 of the CWCR. (7) Exports or imports (e.g., changes in purchased a declared plant site, plant, (4) If part-year reports submitted by the types of Schedule 2 chemicals or trading company you must submit an the previous owner and the new owner exported or imported or in the quantity, amended declaration or report to BIS, are not, when combined, above the recipients, or sources of such either before the effective date of the thresholds in §§ 713.3(b)(1)(i) through chemicals); change or within 30 days after the (iii) of the CWCR, BIS will return the (8) Domestic transfers (e.g., changes in effective date of the change. The reports without action as set forth in the types of Schedule 2 chemicals, types amended declaration or report much § 713.6 of the CWCR. of destinations, or product group codes); include the following information: (ii) Information that must be and (i) Information that must be submitted submitted to BIS by the company (9) Addition of new plant(s) for the to BIS by the company selling a purchasing a declared plant site: production, processing, or consumption declared plant site: (A) Name of purchaser (i.e., name of of Schedule 2 chemicals. (A) Name of seller (i.e., name of the individual or company purchasing a (b) Changes to export or import company selling a declared plant site); declared plant site); information submitted in Annual (B) Name of the declared plant site (B) Mailing address of purchaser; Reports on Exports and Imports from and U.S. Code Number for that plant (C) Name of declaration point of undeclared plant sites, trading site; contact (D–POC) for the purchaser, companies and U.S. persons. You must (C) Name of purchaser (i.e., name of including telephone number, facsimile submit an amended report or amended the new company/owner purchasing a number, and e-mail address; combined declaration and report to BIS declared plant site) and identity of (D) Name of inspection point(s) of within 15 days of any change in the contact person for the purchaser, if contact (I–POC) for the purchaser, following export or import information: known; including telephone number(s), (1) Types of Schedule 2 chemicals (D) Date of ownership transfer or facsimile number(s) and e-mail exported or imported (additional change; address(es); Schedule 2 chemicals); (E) Additional (e.g., unique) details on (E) Name of the declared plant site (2) Quantities of Schedule 2 the sale of the declared plant site and U.S. Code Number for that plant chemicals exported or imported; relevant to ownership or operational site; (3) Destination(s) of Schedule 2 control over any portion of the declared (F) Location of the declared plant site; chemicals exported; plant site (e.g., whether the entire plant (G) Owner of the declared plant site, (4) Source(s) of Schedule 2 chemicals site or only a portion of the declared including telephone number, and imported; and plant site has been sold to a new facsimile number; (5) End-use(s) of Schedule 2 owner); and (H) Operator of the declared plant chemicals imported or exported (e.g., (F) Details regarding whether the new site, including telephone number, and addition of new end-use(s)). owner will submit the next declaration facsimile number; (c) Changes to company and plant site or report for the entire calendar year (I) Name of plant(s) where Schedule 2 information that must be maintained by during which the ownership change activities exceed the applicable BIS for the ADPA, Annual Declaration occurred, or whether the previous declaration threshold; on Anticipated Activities (ADAA), and owner and new owner will submit (J) Owner and operator of plant(s) the Annual Report on Exports and separate declarations or reports for the where Schedule 2 activities exceed the Imports. (1) Internal company changes. periods of the calendar year during applicable declaration threshold, You must submit an amended which each owned the plant site or including telephone numbers, and declaration or report to BIS within 30 trading company. facsimile numbers; days of any change in the following (1) If the new owner is responsible for (K) Location of the plant where information: submitting the declaration or report for Schedule 2 activities exceed the (i) Name of declaration/report point of the entire current year, it must have in applicable declaration threshold; and contact (D–POC), including telephone its possession the records for the period (L) Details on the next declaration or number, facsimile number, and e-mail of the year during which the previous report submission on whether the new address; owner owned the plant site. owner will submit the declaration or (ii) Name(s) of inspection point(s) of (2) If the previous owner and new report for the entire calendar year contact (I–POC), including telephone owner will submit separate declarations during which the ownership change

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occurred, or whether the previous 717.5 of the CWCR. You must submit an information, BIS will not maintain a owner and new owner will submit amended declaration to BIS no later copy of any declaration or report that is separate declarations or reports for the than 45 days following your receipt of returned without action (RWA). periods of the calendar year during BIS’s post inspection letter. However, BIS will maintain a copy of which each owned the plant site or (e) Non-substantive changes. If, the RWA letter. trading company. subsequent to the submission of your declaration or report to BIS, you § 713.7 Deadlines for submission of Note 1 to § 713.5(c): You must submit an discover one or more non-substantive Schedule 2 declarations, reports, and amendment to your most recently submitted amendments. declaration or report for declaring changes to typographical errors in your declaration internal company information (e.g., company or report, you are not required to submit Declarations, reports, and name change) or changes in ownership of a an amended declaration or report to BIS. amendments required under this part facility or trading company that have Instead, you may correct these errors in must be postmarked by the appropriate occurred since the submission of this a subsequent declaration or report. date identified in Supplement No. 2 to declaration or report. BIS will process the (f) Documentation required for this part 713. Required declarations, amendment to ensure current information is amended declarations or reports. If you reports, and amendments include: on file regarding the facility or trading are required to submit an amended company (e.g., for inspection notifications (a) Annual declaration on past and correspondence) and will also forward declaration or report to BIS pursuant to activities (production, processing, or the amended declaration to the OPCW to paragraph (a), (b), (c), or (d) of this consumption) of Schedule 2 chemicals ensure that they also have current section, you must submit either: during the previous calendar year); information on file regarding your facility or (1) A letter containing all of the (b) Annual report on exports and trading company. corrected information required, in imports of Schedule 2 chemicals by accordance with the provisions of this plant sites, trading companies, and Note 2 to § 713.5(c): You may notify BIS of section, to amend your declaration or change in ownership via a letter to the other persons subject to the CWCR report; or address given in § 711.6 of the CWCR. If you (during the previous calendar year); are submitting an amended declaration or (2) Both of the following: report, use Form B to address details (i) A new Certification Form; and (c) Combined declaration and report regarding the sale of the declared plant site (ii) The specific forms required for the (production, processing, or or trading company. declaration or report type being consumption of Schedule 2 chemicals, amended (e.g., annual declaration on as well as exports or imports of the same Note 3 to § 713.5(c): For ownership past activities) containing the corrected or different Schedule 2 chemicals, by a changes, the declared facility or trading information required, in accordance declared plant site during the previous company will maintain its original U.S. Code with the requirements of this section, to calendar year); Number, unless the plant site or trading company is sold to multiple owners, at amend your declaration or report. (d) Annual declaration on anticipated which time BIS will assign new U.S. Code § 713.6 Declarations and reports returned activities (production, processing or Numbers. without action by BIS. consumption) involving Schedule 2 (d) Inspection-related amendments. If, If you submit a declaration or report chemicals during the next calendar year; following the completion of an and BIS determines that the information (e) Declaration on Additionally inspection (see parts 716 and 717 of the contained therein is not required by the Planned Activities (production, CWCR), you are required to submit an CWCR, BIS will return the original processing or consumption) involving amended declaration based on the final declaration or report to you, without Schedule 2 chemicals; and inspection report, BIS will notify you in action, accompanied by a letter (f) Amended declaration and report, writing of the information that will be explaining BIS’s decision. In order to including combined declaration and required pursuant to §§ 716.10 and protect your confidential business report.

SUPPLEMENT NO. 1 TO PART 713—SCHEDULE 2 CHEMICALS

(CAS registry number)

A. Toxic Chemicals (1) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] phosphorothiolate ...... (78–53–5) and cor- responding alkylated or protonated salts (2) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene ...... (382–21–8) (3) BZ: 3-Quinuclidinyl benzilate ...... (6581–06–2) B. Precursors (4) Chemicals, except for those listed in Schedule 1, containing a phosphorus atom to which is bonded one methyl, ethyl or propyl (normal or iso) group but not further carbon atoms: e.g. Methylphosphonyl dichloride ...... (676–97–1) Dimethyl methylphosphonate ...... (756–79–6) Exemption: Fonofos: O-Ethyl S-phenyl ethylphosphono-thiolothionate ...... (944–22–9) (5) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides. (6) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl (Me, Et, n-Pr or i-Pr)-phosphoramidates. (7) Arsenic trichloride ...... (7784–34–1) (8) 2,2-Diphenyl-2-hydroxyacetic acid ...... (76–93–7) (9) Quinuclidine-3-ol ...... (1619–34–7) (10) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-2-chlorides and corresponding protonated salts.

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SUPPLEMENT NO. 1 TO PART 713—SCHEDULE 2 CHEMICALS—Continued

(CAS registry number)

(11) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-ols and corresponding protonated salts. Exemptions: N,N-Dimethylaminoethanol and corresponding protonated salts ...... (108–01–0) N,N-Diethylaminoethanol and corresponding protonated salts ...... (100–37–8) (12) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-thiols and corresponding protonated salts. (13) Thiodiglycol: Bis(2-hydroxyethyl)sulfide ...... (111–48–8) (14) Pinacolyl alcohol: 3,3-Dimethylbutane-2-ol ...... (464–07–3) Notes to Supplement No. 1 Note 1: Note that the following Schedule 2 chemicals are controlled for export purposes by the Office of Defense Trade Control of the Depart- ment of State under the International Traffic in Arms Regulations (22 CFR parts 120 through 130): Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts (78–53–5); BZ: 3-Quinuclidinyl benzilate 6581–06–2); and Methylphosphonyl dichloride (676–97–1). Note 2: All Schedule 2 chemicals not listed in Note 1 to this Supplement are controlled for export purposes under the Export Administration Regulations (see part 774 of the EAR, the Commerce Control List).

SUPPLEMENT NO. 2 TO PART 713—DEADLINES FOR SUBMISSION OF SCHEDULE 2 DECLARATIONS, REPORTS, AND AMENDMENTS

Declarations and reports Applicable forms Due dates

Annual Declaration on Past Activities (previous Certification, 2–1, 2–2, 2–3, 2–3A, 2–3B (if February 28 of the year following any cal- calendar year). also exported or imported), A (as appro- endar year in which the production, proc- Declared plant site (production, processing, or priate), B (optional). essing, or consumption of a Schedule 2 consumption). chemical exceeded the applicable declara- tion thresholds in § 713.2(a)(1)(i) of the CWCR. Annual Report on Exports and Imports (pre- Certification, 2–1, 2–3B, A (as appropriate), B February 28 of the year following any cal- vious calendar year). (optional). endar year in which exports or imports of a Plant site, trading company, other persons. Schedule 2 chemical by a plant site, trading company, or other person subject to the CWCR (as described in § 713.3(a)(2) of the CWCR) exceeded the applicable thresholds in § 713.3(b)(1) of the CWCR. Combined Declaration & Report ...... Certification, 2–1, 2–2, 2–3, 2–3A, 2–3B, A February 28 of the year following any cal- Declared plant site (production, processing, or (as appropriate), B (optional). endar year in which the production, proc- consumption; exports and imports). essing, or consumption of a Schedule 2 chemical and the export or import of the same or a different Schedule 2 chemical by a declared plant site exceeded the applica- ble thresholds in §§ 713.2(a)(1)(i) and 713.3(b)(1), respectively, of the CWCR. Annual Declaration on Anticipated Activities Certification, 2–1, 2–2, 2–3, 2–3A, 2–3C, A September 3 of the year prior to any calendar (next calendar year). (as appropriate), B (optional). year in which Schedule 2 activities are an- ticipated to occur. Declaration on Additionally Planned Activities Certification, 2–1, 2–2, 2–3, 2–3A, 2–3C, A 15 calendar days before the additionally (production, processing and consumption). (as appropriate), B (optional). planned activity begins. Amended Declaration: —Declaration information ...... Certification, 2–1, 2–2, 2–3, 2–3A, 2–3B (if —15 calendar days after change in informa- —Company information also exported or imported), A (as appro- tion —Post-inspection letter priate), B (optional). —30 calendar days after change in informa- tion —45 calendar days after receipt of letter Amended Report ...... Certification, 2–1, 2–3B, A (as appropriate), B —15 calendar days after change in informa- (optional). tion Amended Combined Declaration & Report ...... Certification, 2–1, 2–2, 2–3, 2–3A, 2–3B, A —15 calendar days after change in informa- (as appropriate), B (optional). tion

PART 714—ACTIVITIES INVOLVING 714.3 Advance declaration requirements for Supplement No. 2 to Part 714—Deadlines for SCHEDULE 3 CHEMICALS additionally planned production of Submission of Schedule 3 Declarations, Schedule 3 chemicals. Reports, and Amendments Sec. 714.4 Amended declaration or report. Authority: 22 U.S.C. 6701 et seq.; E.O. 714.1 Annual declaration requirements for 714.5 Declarations and reports returned 13128, 64 FR 36703, 3 CFR, 1999 Comp., p. plant sites that produce a Schedule 3 without action by BIS. 199. chemical in excess of 30 metric tons. 714.6 Deadlines for submission of Schedule § 714.1 Annual declaration requirements 714.2 Annual reporting requirements for 3 declarations, reports, and amendments. for plant sites that produce a Schedule 3 exports and imports in excess of 30 Supplement No. 1 to Part 714—Schedule 3 chemical in excess of 30 metric tons. metric tons of Schedule 3 chemicals. Chemicals (a) Declaration of production of Schedule 3 chemicals for purposes not

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prohibited by the CWC. (1) Production Certification Form, and Forms 3–1 and reporting requirement under this quantities that trigger the declaration 3–3 if you anticipate that you will section. requirement. You must complete the produce at one or more plants on your (1) Annual report on exports and appropriate forms specified in plant site in excess of 30 metric tons of imports. Declared plant sites, paragraph (b) of this section if you have any single Schedule 3 chemical in the undeclared plant sites, trading produced or anticipate producing a next calendar year. companies, or any other person subject Schedule 3 chemical (see Supplement (c) Quantities to be declared. (1) to the CWCR that exported from or No. 1 to this part) as follows: Production of a Schedule 3 chemical in imported into the United States in (i) Annual declaration on past excess of 30 metric tons. If your plant excess of 30 metric tons of any single activities. You produced at one or more site is subject to the declaration Schedule 3 chemical during the plants on your plant site in excess of 30 requirements of paragraph (a) of this previous calendar year must submit an metric tons of any single Schedule 3 section, you must declare the range annual report on exports and imports. chemical during the previous calendar within which the production at your year. plant site falls (30 to 200 metric tons, Note 1 to paragraph (a)(1): Declared and (ii) Annual declaration on anticipated undeclared plant sites must count, for report 200 to 1,000 metric tons, etc.) as purposes, all exports from and imports to the activities. You anticipate that you will specified on Form 3–3. When specifying produce at one or more plants on your entire plant site, not only from or to the range of production for your plant individual plants on the plant site. plant site in excess of 30 metric tons of site, you must aggregate the production any single Schedule 3 chemical in the quantities of all plants on the plant site Note 2 to paragraph (a)(1): The U.S. next calendar year. that produced the Schedule 3 chemical Government will not submit to the OPCW (2) Schedule 3 chemical production. in amounts greater than 30 metric tons. company-specific information relating to the (i) For the purpose of determining export or import of Schedule 3 chemicals Do not aggregate amounts of production Schedule 3 production, you must contained in reports. The U.S. Government from plants on the plant site that did not include all steps in the production of a will add all export and import information individually produce a Schedule 3 chemical in any units within the same contained in reports to establish the U.S. chemical in amounts greater than 30 plant through chemical reaction, national aggregate declaration on exports and metric tons. You must complete a imports. including any associated processes (e.g., separate Form 3–3 for each Schedule 3 purification, separation, extraction, chemical for which production at your (2) Mixtures containing a Schedule 3 distillation, or refining) in which the plant site exceeds 30 metric tons. chemical. The quantity of a Schedule 3 chemical is not converted into another (2) Rounding. To determine the chemical contained in a mixture must chemical. The exact nature of any be counted for reporting an export or associated process (e.g., purification, production range into which your plant site falls, add all the production of the import only if the concentration of the etc.) is not required to be declared. Schedule 3 chemical in the mixture is (ii) For the purpose of determining if declared Schedule 3 chemical during the calendar year from all plants on 80% or more by volume or by weight, a Schedule 3 chemical is subject to whichever yields the lesser percent. For declaration, you must declare an your plant site that produced the Schedule 3 chemical in amounts reporting purposes, only count the intermediate Schedule 3 chemical, but weight of the Schedule 3 chemical in not a transient intermediate Schedule 3 exceeding 30 metric tons, and round to the nearest ten metric tons. the mixture, not the entire weight of the chemical. mixture. (3) Mixtures containing a Schedule 3 (d) ‘‘Declared’’ Schedule 3 plant site. chemical. (i) When you must count the A plant site that submitted a declaration Note to paragraph (a)(2): The ‘‘80% and quantity of a Schedule 3 chemical in a pursuant to paragraph (a)(1) of this above’’ mixtures rule applies only for report mixture for declaration purposes. The section is a ‘‘declared’’ Schedule 3 plant purposes. This rule does not apply for quantity of each Schedule 3 chemical site. purposes of determining whether the export (e) Routine inspections of declared of your mixture to a non-State Party requires contained in a mixture must be counted an End-Use Certificate or for determining for declaration purposes only if the Schedule 3 plant sites. A ‘‘declared’’ whether you need an export license from BIS concentration of each Schedule 3 Schedule 3 plant site is subject to (see 15 CFR 742.2, 742.18 and 745.2 of the chemical in the mixture is 80% or more routine inspection by the Organization Export Administration Regulations) or from by volume or by weight, whichever for the Prohibition of Chemical the Department of State (see the International yields the lesser percent. Weapons (see part 716 of the CWCR) if: Traffic in Arms Regulations (22 CFR parts (ii) How to count the amount of a (1) The declared plants on your plant 120 through 130)). Schedule 3 chemical in a mixture. If site produced in excess of 200 metric (b) Types of forms to be used. (1) your mixture contains 80% or more tons aggregate of any Schedule 3 Declared Schedule 3 plant sites. (i) If concentration of a Schedule 3 chemical, chemical during the previous calendar your plant site is declared for you must count only the amount year; or production of a Schedule 3 chemical (weight) of the Schedule 3 chemical in (2) You anticipate that the declared the mixture, not the total weight of the (and has completed questions 3–3.1 and plants on your plant site will produce 3–3.2 on Form 3–3) and you also mixture. in excess of 200 metric tons aggregate of (b) Types of declaration forms to be exported from or imported to your plant any Schedule 3 chemical during the site in excess of 30 metric tons of that used. (1) Annual declaration on past next calendar year. activities. You must complete the same Schedule 3 chemical, you must Certification Form and Forms 3–1, 3–2, § 714.2 Annual reporting requirements for report the export or import by either: 3–3, and Form A if one or more plants exports and imports in excess of 30 metric (A) Completing question 3–3.3 on on your plant site produced in excess of tons of Schedule 3 chemicals. Form 3–3 on your declaration for that 30 metric tons of any single Schedule 3 (a) Any person subject to the CWCR same Schedule 3 chemical; or chemical during the previous calendar that exported from or imported into the (B) Submitting, separately from your year. Form B is optional. United States in excess of 30 metric tons declaration, a Certification Form, Form (2) Annual declaration on anticipated of any single Schedule 3 chemical 3–1, and a Form 3–3 for each Schedule activities. You must complete the during the previous calendar year has a 3 chemical to be reported, completing

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only question 3–3.3. Attach Form A, as calendar year has been delivered to BIS previously submitted to BIS. You must appropriate; Form B is optional. if: submit an amended declaration or (ii) If your plant site is declared for (i) You plan that a previously report to BIS within 15 days of any production of a Schedule 3 chemical undeclared plant on your plant site change in the following information: and you exported or imported in excess under § 714.1(a)(1)(ii) will produce a (1) Types of Schedule 3 chemicals of 30 metric tons of a different Schedule Schedule 3 chemical above the produced (e.g., production of additional 3 chemical, you must report the export declaration threshold; Schedule 3 chemicals); or import by either: (ii) You plan to produce at a plant (2) Production range (e.g., from 30 to (A) Submitting, along with your declared under § 714.1(a)(1)(ii) an 200 metric tons to above 200 to 1000 declaration, a Form 3–3 for each additional Schedule 3 chemical above metric tons) of Schedule 3 chemicals; Schedule 3 chemical to be reported, the declaration threshold; (3) Purpose of Schedule 3 chemical completing only question 3–3.3. Attach (iii) You plan to increase the production (e.g., additional end-uses); Form A, as appropriate; Form B is production of a Schedule 3 chemical by and optional; or declared plants on your plant site from (4) Addition of new plant(s) for (B) Submitting, separately from your the amount exceeding the applicable production of Schedule 3 chemicals. declaration, a Certification Form, Form declaration threshold to an amount (b) Changes to export or import 3–1 and a Form 3.3 for each Schedule exceeding the applicable inspection information submitted in Annual 3 chemical to be reported, completing threshold (see § 716.1(b)(3) of the Reports on Exports and Imports from only question 3–3.3. Attach Form A, as CWCR); or undeclared plant sites, trading appropriate; Form B is optional. (iv) You plan to increase the aggregate companies and U.S. persons. You must (2) If you are an undeclared plant site, production of a Schedule 3 chemical at submit an amended report or amended a trading company, or any other person a declared plant site to an amount above combined declaration and report to BIS subject to the CWCR, you must submit the upper limit of the range previously within 15 days of any change in the a Certification Form, Form 3–1, and a declared under § 714.1(a)(1)(ii). following export or import information: (2) If you must submit a declaration Form 3–3 for each Schedule 3 chemical (1) Types of Schedule 3 chemicals on additionally planned activities to be reported, completing only question exported or imported (additional because you plan to engage in any of the 3–3.3. Attach Form A, as appropriate; Schedule 3 chemicals); activities listed in paragraphs (a)(1)(i) Form B is optional. (2) Quantities of Schedule 3 through (iv) of this section, you also (c) Quantities to be reported. (1) chemicals exported or imported; should declare any changes to the Calculations. If you exported from or (3) Destination(s) of Schedule 3 anticipated purposes of production or imported to your plant site or trading chemicals exported; product group codes. You do not have company more than 30 metric tons of a (4) Source(s) of Schedule 3 chemicals to submit a declaration on additionally Schedule 3 chemical in the previous imported; and planned activities if you are only (5) End-use(s) of Schedule 3 calendar year, you must report all changing your purposes of production chemicals exported or imported (e.g., exports and imports of that chemical by or product group codes. addition of new end-use(s)). country of destination or country of (b) Declaration forms to be used. If (c) Changes to company and plant site origin, respectively, and indicate the you are required to declare additionally information submitted in the ADPA, the total amount exported to or imported planned activities pursuant to paragraph Annual Declaration of Anticipated from each country. (a) of this section, you must complete Activities, and the Annual Report on (2) Rounding. For purposes of the Certification Form and Forms 3–1, Exports and Imports. (1) Internal reporting exports and imports of a 3–2, and 3–3 as appropriate. Such forms company changes. You must submit an Schedule 3 chemical, you must total all are due to BIS at least 15 days in amended declaration or report to BIS exports and imports per calendar year advance of the beginning of the within 30 days of any change in the per recipient or source and then round additional or new activity. following information: to the nearest 0.1 metric tons. (i) Name of declaration/report point of § 714.4 Amended declaration or report. Note to § 714.2(c): Under the Convention, contact (D-POC), including telephone the United States is obligated to provide the In order for BIS to maintain accurate number, facsimile number, and e-mail OPCW a national aggregate annual information on previously submitted address; declaration of the quantities of each Schedule plant site declarations, including (ii) Name(s) of inspection point(s) of 3 chemical exported and imported. The U.S. information necessary to facilitate contact (I-POC), including telephone Government will not submit your company- inspection notifications and activities or number, and facsimile number, and e- specific information relating to the export or to communicate declaration or report mail address(es); import of a Schedule 3 chemical reported requirements, amended declarations or under this § 714.2. The U.S. Government will (iii) Company name (see 714.4(c)(2) add all export and import information reports will be required under the for other company changes); submitted by various facilities under this following circumstances described in (iv) Company mailing address; section to produce a national aggregate this section. This section applies only to (v) Plant site name; annual declaration of destination-by- annual declarations on past activities (vi) Plant site owner, including destination trade for each Schedule 3 and annual reports on exports and telephone number and facsimile chemical. imports submitted for the previous number; calendar year or annual declarations on (vii) Plant site operator, including § 714.3 Advance declaration requirements anticipated activities covering the telephone number and facsimile for additionally planned production of current calendar year, unless specified number; Schedule 3 chemicals. otherwise in a final inspection report. (viii) Plant name; (a) Declaration requirements. (1) You (a) Changes to information that (xi) Plant owner, including telephone must declare additionally planned directly affects a declared plant site’s number and facsimile number; and production of Schedule 3 chemicals Annual Declaration of Past Activities (x) Plant operator, including after the annual declaration on (ADPA) or Combined Annual telephone number and facsimile anticipated activities for the next Declaration or Report which was number.

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(2) Change in ownership of company, set forth in § 714.2(a)(1) of the CWCR, Note 3 to § 714.4(c): For ownership plant site, or plant. If you sold or BIS will return the reports without changes, the declared plant site or trading purchased a declared company, plant action as set forth in § 714.5 of the company will maintain its original U.S. Code Number, unless the plant site or trading site or plant, you must submit an CWCR. company is sold to multiple owners, at amended declaration or report to BIS, (ii) Information that must be which time BIS will assign new U.S. Code either before the effective date of the submitted to BIS by the company Numbers. change or within 30 days after the purchasing a declared plant site: effective date of the change. The (A) Name of purchaser (i.e., name of (d) Inspection-related amendments. If, amended declaration or report must individual or company purchasing a following the completion of an include the following information. declared plant site); inspection (see parts 716 and 717 of the (i) Information that must be submitted (B) Mailing address of purchaser; CWCR), you are required to submit an to BIS by a company selling a declared (C) Name of declaration point of amended declaration based on the final plant site: contact (D-POC) for the purchaser, inspection report, BIS will notify you in (A) Name of seller (i.e., name of the including telephone number, facsimile writing of the information to be company selling a declared plant site); number, and e-mail address; amended pursuant to §§ 716.10 and (B) Name of declared plant site and (D) Name(s) of inspection point(s)s of 717.5(b) of the CWCR. Amended U.S. Code Number for that plant site; contact (I-POC) for the purchaser, declarations must be submitted to BIS (C) Name of purchaser (i.e., name of including telephone number, facsimile no later than 45 days following your receipt of BIS’s post inspection letter. company purchasing a declared plant number, and e-mail address(es); site) and identity of the new owner and (e) Non-substantive changes. If, (E) Name of the declared plant site subsequent to the submission of your contact person for the purchaser, if and U.S. Code Number for that plant known; declaration or report to BIS, you site; discover one or more non-substantiative (D) Date of ownership transfer; (F) Location of the declared plant site; (E) Additional (e.g., unique) details on typographical errors in your declaration (G) Operator of the declared plant site, the sale of the plant site relevant to or report, you are not required to submit including telephone number, and ownership or operational control over an amended declaration or report to BIS. facsimile number; any portion of the declared plant site Instead, you may correct these errors in (H) Name of plant where Schedule 3 (e.g., whether the entire plant site or a subsequent declaration or report. production exceeds the declaration only a portion of the declared plant site (f) Documentation required for threshold; has been sold to a new owner); and amended declarations or reports. If you (F) Details regarding whether the new (I) Owner of plant where Schedule 3 are required to submit an amended owner will submit the declaration or production exceeds the declaration declaration or report to BIS pursuant to report for the entire calendar year threshold; paragraph (a), (b), (c), or (d) of this during which the ownership changed (J) Operator of plant where Schedule section, you must submit either: occurred, or whether the previous 3 production exceeds the declaration (1) A letter containing all of the owner and the new owner will submit threshold; and corrected information required, in separate declarations or reports for the (K) Details on the next declaration or accordance with the provisions of this periods of the calendar year during report submission on whether the new section, to amend your declaration or which each owned the plant site or owner will submit the declaration or report; or trading company. report for the entire calendar year (2) Both of the following: (1) If the new owner is responsible for during which the ownership change (i) A new Certification Form; and submitting the declaration or report for occurred, or whether the previous (ii) The specific forms required for the the entire current year, it must have in owner and new owner will submit declaration or report type being its possession the records for the period separate declarations or reports for the amended (e.g., annual declaration on of the year during which the previous periods of the calendar year during past activities) containing the corrected owner owned the plant site or trading which each owned the plant site or information required, in accordance company. trading company. with the requirements of this section, to amend your declaration or report. (2) If the previous owner and new Note 1 to § 714.4(c): You must submit an owner will submit separate declarations amendment to your most recently submitted § 714.5 Declarations and reports returned or reports for the periods of the calendar declaration or report for declaring changes to without action by BIS. year during which each owned the plant internal company information (e.g., company If you submit a declaration or report name change) or changes in ownership of a site or trading company, and, at the time and BIS determines that the information of transfer of ownership, the previous facility or trading company that have occurred since the submission of this contained therein is not required by the owner’s activities are not above the CWCR, BIS will return the original declaration or report thresholds set forth declaration or report. BIS will process the amendment to ensure current information is declaration or report to you, without in § 714.1(a)(1) and § 714.2(a)(1) of the on file regarding the facility or trading action, accompanied by a letter CWCR, respectively, the previous owner company (e.g., for inspection notifications explaining BIS’s decision. In order to and the new owner must still submit and correspondence) and will also forward protect your confidential business declarations to BIS with the below the amended declaration to the OPCW to information, BIS will not maintain a threshold quantities indicated. ensure that they also have current copy of the any declaration or report (3) If the part-year declarations information on file regarding your facility or trading company. that is returned without action. submitted by the previous owner and However, BIS will maintain a copy of the new owner are not, when combined, the RWA letter. above the declaration threshold set forth Note 2 to § 714.4(c): You may notify BIS of change in ownership via a letter to the in § 714.1(a)(1) of the CWCR, BIS will address given in § 711.6 of the CWCR. If you § 714.6 Deadlines for submission of return the declarations without action as are submitting an amended declaration or Schedule 3 declarations, reports, and set forth in § 714.5 of the CWCR. report, use Form B to address details amendments. (4) If part-year reports are not, when regarding the sale of the declared plant site Declarations, reports, and combined, above the report threshold or trading company. amendments required under this part

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must be postmarked by the appropriate plant sites, trading companies, and Schedule 3 chemicals during the next date identified in Supplement No. 2 to other persons subject to the CWCR calendar year); this part 714 of the CWCR. Required (during the previous calendar year); (e) Declaration on Additionally (c) Combined declaration and report declarations, reports, and amendments Planned Activities (additionally include: (production of Schedule 3 chemicals, as (a) Annual declaration on past well as exports or imports of the same planned production of Schedule 3 activities (production of Schedule 3 or different Schedule 3 chemicals, by a chemicals); and chemicals during the previous calendar declared plant site during the previous (f) Amended declaration and report, year); calendar year); including combined declaration and (b) Annual report on exports and (d) Annual declaration on anticipated report. imports of Schedule 3 chemicals from activities (anticipated production of

SUPPLEMENT NO. 1 TO PART 714—SCHEDULE 3 CHEMICALS

(CAS registry number)

A. Toxic chemicals (1) Phosgene: Carbonyl dichloride ...... (75–44–5) (2) Cyanogen chloride ...... (506–77–4) (3) Hydrogen cyanide ...... (74–90–8) (4) Chloropicrin: Trichloronitromethane ...... (76–06–2) B. Precursors (5) Phosphorus oxychloride ...... (10025–87–3) (6) Phosphorus trichloride ...... (7719–12–2) (7) Phosphorus pentachloride ...... (10026–13–8) (8) Trimethyl phosphite ...... (121–45–9) (9) Triethyl phosphite ...... (122–52–1) (10) Dimethyl phosphite ...... (868–85–9) (11) Diethyl phosphite ...... (762–04–9) (12) Sulfur monochloride ...... (10025–67–9) (13) Sulfur dichloride ...... (10545–99–0) (14) Thionyl chloride ...... (7719–09–7) (15) Ethyldiethanolamine ...... (139–87–7) (16) Methyldiethanolamine ...... (105–59–9) (17) Triethanolamine ...... (102–71–6) Note to Supplement No. 1: Refer to Supplement No. 1 to part 774 of the Export Administration Regulations (the Commerce Control List), ECCNs 1C350 and 1C355, for export controls related to Schedule 3 chemicals.

SUPPLEMENT NO. 2 TO PART 714—DEADLINES FOR SUBMISSION OF SCHEDULE 3 DECLARATIONS, REPORTS, AND AMENDMENTS

Declarations Applicable forms Due dates

Annual Declaration on Past Activities (previous Certification, 3–1, 3–2, 3–3 (if also exported February 28 of the year following any cal- calendar year). or imported), A (as appropriate), B (op- endar year in which the production of a Declared plant site (production) tional). Schedule 3 chemical exceeded the declara- tion threshold in § 714.1(a)(1)(i) of the CWCR. Annual Report on Exports and Imports (pre- Certification, 3–1, 3–3.3 and 3–3.4, A (as ap- February 28 of the year following any cal- vious calendar year); propriate), B (optional). endar year in which exports or imports of a Plant site, trading company, other persons. Schedule 3 chemical by a plant site, trading company, or other person subject to the CWCR (as described in § 714.2(a) of the CWCR) exceeded the threshold in § 714.2(a) of the CWCR. Combined Declaration & Report ...... Certification, 3–1, 3–2, and 3–3, A (as appro- February 28 of the year following any cal- priate), B (optional). endar year in which the production of a Schedule 3 chemical and the export or im- port of the same or a different Schedule 3 chemical by a declared plant site exceeded the applicable thresholds in §§ 714.1(a)(1)(i) and 714.2(a), respectively, of the CWCR. Annual Declaration on Anticipated Activities Certification, 3–1, 3–2, 3–3.2, A (as appro- September 3 of the year prior to any calendar (Production); (next calendar year). priate), B (optional). year in which Schedule 3 production is an- ticipated to occur. Declaration on Additionally Planned Activities ... Certification, 3–1, 3–3.1 and 3–3.2, A (as ap- 15 calendar days before the additionally propriate), B (optional). planned activity begins. Amended Declaration: —Declaration information ...... Certification, 3–1, 3–2, 3–3 ...... —15 calendar days after change in informa- —Company information tion —Post-inspection letter. —30 calendar days after change in informa- tion —45 calendar days after receipt of letter Amended Report ...... Certification, 3–1, 3–2, 3–3, A (as appro- —15 calendar days after change in informa- priate), B (optional. tion

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Declarations Applicable forms Due dates

Combined Declaration & Report ...... Certification, 3–1,3–2, 3–3, A (as appropriate), —15 calendar days after change in informa- B (optional). tion

PART 715—ACTIVITIES INVOLVING subject to declaration requirements applicable, based upon the data UNSCHEDULED DISCRETE ORGANIC under this part are those produced by reported in the most recent UDOC CHEMICALS (UDOCs) synthesis that have been isolated for: Declaration that you submitted to BIS. (A) Use; or Sec. (B) Sale as a specific end product. Note to § 715.1(b)(1)(ii): If, after submitting 715.1 Annual declaration requirements for (ii) Exemptions. the No Changes Authorization Form, you production by synthesis of unscheduled have changes to information, you must (A) Polymers and oligomers submit a complete amendment to the annual discrete organic chemicals (UDOCs). consisting of two or more repeating 715.2 Amended declaration. declaration on past activities. See § 715.2. units; 715.3 Declarations returned without action (c) ‘‘Declared’’ UDOC plant site. A by BIS. (B) Chemicals and chemical mixtures 715.4 Deadlines for submitting UDOC produced through a biological or plant site that submitted a declaration declarations, no changes authorization biomediated process; pursuant to paragraph (a)(1) of this forms, and amendments. (C) Products from the refining of section is a ‘‘declared’’ UDOC plant site. Supplement No. 1 to part 715—Definition of crude oil, including sulfur-containing (d) Routine inspections of declared an Unscheduled Discrete Organic crude oil; UDOC plant sites. A ‘‘declared’’ UDOC Chemical. (D) Metal carbides (i.e., chemicals plant site is subject to routine Supplement No. 2 to Part 715—Examples of consisting only of metal and carbon); inspection by the Organization for the Unscheduled Discrete Organic and Prohibition of Chemical Weapons (see Chemicals (UDOCs) and UDOC (E) UDOCs produced by synthesis that part 716 of the CWCR) if it produced by Production. Supplement No. 3 to Part 715—Deadlines for are ingredients or by-products in foods synthesis more than 200 metric tons Submission of Declarations, No Changes designed for consumption by humans aggregate of UDOCs during the previous Authorization Forms, and Amendments and/or animals. calendar year. for Unscheduled Discrete Organic Note to paragraph (a)(2): See Supplement § 715.2 Amended declaration. Chemical (UDOC) Facilities. No. 2 to this part for examples of UDOCs In order for BIS to maintain accurate Authority: 22 U.S.C. 6701 et seq.; E.O. subject to the declaration requirements of information on previously submitted 13128, 64 FR 36703, 3 CFR, 1999 Comp., p. this part, and for examples of activities that 199. are not considered production by synthesis. plant site declarations, including current information necessary to § 715.1 Annual declaration requirements (3) Exemptions for UDOC plant sites. facilitate inspection notifications and for production by synthesis of unscheduled UDOC plant sites that exclusively activities or to communicate declaration discrete organic chemicals (UDOCs). produced hydrocarbons or explosives requirements, amended declarations (a) Declaration of production by are exempt from UDOC declaration will be required under the following synthesis of UDOCs for purposes not requirements. For the purposes of this circumstances described in this section. prohibited by the CWC. (1) Production part, the following definitions apply for This section applies only to annual quantities that trigger the declaration hydrocarbons and explosives: declarations on past activities submitted requirement. See § 711.6 of the CWCR (i) Hydrocarbon means any organic for the previous calendar year, unless for information on obtaining the forms compound that contains only carbon specified otherwise in a final inspection you will need to declare production of and hydrogen; and report. unscheduled discrete organic chemicals. (ii) Explosive means a chemical (or a (a) Changes to information that You must complete the forms specified mixture of chemicals) that is included directly affects a declared plant site’s in paragraph (b) of this section if your in Class 1 of the United Nations Annual Declaration of Past Activities plant site produced by synthesis: Organization hazard classification (ADPA) which was previously submitted (i) In excess of 200 metric tons system. to BIS. You must submit an amended aggregate of all UDOCs (including all (b) Types of declaration forms to be declaration to BIS within15 days of any UDOCs containing the elements used. (1) Annual declaration on past change in the following information: phosphorus, sulfur or fluorine, referred activities. (i) You must complete the (1) Product group codes for UDOCs to as ‘‘PSF-chemicals’’) during the Certification Form and Form UDOC produced in quantities exceeding the previous calendar year; or (consisting of two pages), unless there applicable declaration threshold (ii) In excess of 30 metric tons of an are no changes from the previous year’s specified in § 715.1(a)(1); individual PSF-chemical at one or more declaration and you submit a No (2) Approximate number of plants at plants at your plant site during the Changes Authorization Form pursuant the declared plant site that produced previous calendar year. to paragraph (b)(1)(ii) of this section. any amount of UDOCs (including all Note to § 715.1(a)(1)(ii): In calculating the Attach Form A as appropriate; Form B PSF chemicals); aggregate production quantity of each is optional. (3) Aggregate amount of production individual PSF chemical produced by a PSF (ii) You may complete the No Changes (by production range) of UDOCs plant, do not include production of a PSF Authorization Form if there are no produced by all plants at the declared chemical that was produced in quantities less updates or changes to any information plant site; than 30 metric tons. Include only production (except the certifying official and dates (4) Exact number of plants at the quantities from those PSF plants that signed and submitted) in your plant declared plant site that individually produced more than 30 metric tons of an site’s previously submitted annual produced more than 30 metric tons of a individual PSF chemical. declaration on past activities. Your single PSF chemical; and (2) UDOCs subject to declaration plant site’s activities will be declared to (5) Production range of each plant at requirements under this part. (i) UDOCs the OPCW and subject to inspection, if the declared plant site that individually

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produced more than 30 metric tons of a (2) If the previous owner and new declaration or report. BIS will process the single PSF chemical. owner will submit separate declarations amendment to ensure current information is (b) Changes to company and plant for the periods of the calendar year on file regarding the facility or trading site information submitted in the ADPA during which each owned the plant site, company (e.g., for inspection notifications that must be maintained by BIS. (1) and correspondence) and will also forward and, if at the time of transfer of the amended declaration to the OPCW to Internal company changes. You must ownership, the previous owner’s ensure that they also have current submit an amended declaration to BIS activities are not above the declaration information on file regarding your facility or within 30 days of any change in the thresholds set forth in § 715.1(a)(1) of trading company. following information: the CWCR, the previous owner and the (i) Name of declaration point of new owner must still submit Note 2 to § 715.2(b): You may notify BIS of contact (D–POC), including telephone declarations to BIS with the below change in ownership via a letter to the number, facsimile number, and e-mail threshold quantities indicated. address given in § 711.6 of the CWCR. If you address; (3) If the part-year declarations are submitting an amended declaration, use (ii) Name(s) of inspection point(s) of Form B to address details regarding the sale submitted by the previous owner and of the declared plant site. contact (I–POC), including telephone the new owner are not, when combined, number, facsimile number(s) and e-mail above the declaration threshold set forth Note 3 to § 715.2(b): For ownership address(es); in § 715.1(a)(1) of the CWCR, BIS will changes, the declared plant site will maintain (iii) Company name (see 715.2(b)(2) return the declarations without action as its original U.S. Code Number, unless the for other company changes); set forth in § 715.3 of the CWCR. plant site is sold to multiple owners, at (iv) Company mailing address; (ii) Information that must be which time BIS will assign new U.S. Code (v) Plant site name; Numbers. (vi) Plant site owner, including submitted to BIS by the company telephone number and facsimile purchasing a declared plant site: (c) Inspection-related amendments. If, number; and (A) Name of purchaser (i.e., name of following completion of an inspection (vii) Plant site operator, including individual or company purchasing a (see parts 716 or 717 of the CWCR), you telephone number and facsimile declared plant site); are required to submit an amended number. (B) Mailing address of purchaser; declaration based on the final (2) Change in ownership of company (C) Name of declaration point of inspection report, BIS will notify you in or plant site. If you sold or purchased contact (D-POC) for the purchaser, writing of the information that will be a declared plant site, you must submit including telephone number, facsimile required pursuant to §§ 716.10 and an amended declaration to BIS, either number, and e-mail address; 717.5 of the CWCR. You must submit an before the effective date of the change or (D) Name(s) of inspection point(s) of amended declaration to BIS no later within 30 days after the effective date of contact (I-POC) for the purchaser, than 45 days following your receipt of the change. The amended declaration including telephone number(s), BIS’s post inspection letter. must include the following information. facsimile number(s), and e-mail (d) Non-substantive changes. If, (i) Information that must be submitted address(es); subsequent to the submission of your to BIS by the company selling a (E) Name of the declared plant site declaration to BIS, you discover one or declared plant site: and U.S. Code Number for that plant more non-substantive typographical (A) Name of seller (i.e., name of site; errors in your declaration, you are not company selling a declared plant site); (F) Location of the declared plant site; required to submit an amended (B) Name of declared plant site name (G) Name of plant site where the declaration to BIS. Instead, you may and U.S. Code Number for that plant production of UDOCs exceeds the correct these errors in a subsequent site; applicable declaration threshold; declaration. (C) Name of purchaser (i.e., name of (H) Owner of plant site where the (e) Documentation required for new company purchasing a declared production of UDOCs exceeds the amended declarations. If you are plant site) and identity of contact person applicable declaration threshold, required to submit an amended for the purchaser, if known; including telephone number and declaration to BIS pursuant to paragraph (D) Date of ownership transfer or facsimile number; (a), (b), or (c) of this section, you must change; (I) Operator of plant site where the submit either: (E) Additional details on the sale of production of UDOCs exceeds the (1) A letter containing all of the the declared plant site relevant to applicable declaration threshold, corrected information required, in ownership or operational control over including telephone number and accordance with the provisions of this any portion of the declared plant site facsimile number; and section, to amend your declaration; or (e.g., whether the entire plant site or (J) Details on the next declaration or (2) Both of the following: only a portion of the declared plant site report submission on whether the new (i) A new Certification Form; and has been sold to a new owner); and owner will submit the declaration or (ii) The specific form required for the (F) Details regarding whether the new report for the entire calendar year declaration containing the corrected owner will submit the declaration for during which the ownership change information required, in accordance the entire calendar year during which occurred, or whether the previous with the requirements of this section, to the ownership change occurred, or owner and new owner will submit amend your declaration. whether the previous owner and new separate declarations or report for the owner will submit separate declarations periods of the calendar year during § 715.3 Declarations returned without for the periods of the calendar year which each owned the plant site. action by BIS. during which each owned the plant site. If you submit a declaration and BIS (1) If the new owner is responsible for Note 1 to § 715.2(b): You must submit an determines that the information amendment to your most recently submitted submitting the declaration for the entire declaration or report for declaring changes to contained therein is not required by the current year, it must have in its internal company information (e.g., company CWCR, BIS will return the original possession the records for the period of name change) or changes in ownership of a declaration to you, without action, the year during which the previous facility or trading company that have accompanied by a letter explaining owner owned the plant site. occurred since the submission of this BIS’s decision. In order to protect your

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confidential business information, BIS that is not contained in the Schedules of (i) UDOCs produced coincidentally as by- will not maintain a copy of any Chemicals (see Supplements No. 1 to parts products that are not isolated for use or sale declaration that is returned without 712 through 714 of this subchapter). as a specific end product, and are routed to, Unscheduled discrete organic chemicals or escape from, the waste stream of a stack, action. However, BIS will maintain a subject to declaration under this part are copy of the RWA letter. incinerator, or waste treatment system or any those produced by synthesis that are isolated other waste stream; § 715.4 Deadlines for submitting UDOC for use or sale as a specific end-product. (ii) UDOCs, contained in mixtures, which declarations, no changes authorization Note: Carbon oxides consist of chemical are produced coincidentally and not isolated forms, and amendments. compounds that contain only the elements for use or sale as a specific end-product; Declarations, no changes carbon and oxygen and have the chemical (iii) UDOCs produced by recycling (i.e., involving one of the processes listed in authorization forms, and amendments formula CxOy, where x and y denote integers. The two most common carbon oxides are paragraph (3) of this supplement) of required under this part must be carbon monoxide (CO) and carbon dioxide previously declared UDOCs; postmarked by the appropriate dates (CO2). Carbon sulfides consist of chemical (iv) UDOCs produced by the mixing (i.e., identified in Supplement No. 3 to this compounds that contain only the elements the process of combining or blending into part 715 of the CWCR. Required carbon and sulfur, and have the chemical one mass) of previously declared UDOCs; declarations include: formula CaSb, where a and b denote integers. and (a) Annual declaration on past The most common carbon sulfide is carbon (v) UDOCs that are intermediates and that activities (UDOC production during the disulfide (CS2). Metal carbonates consist of are used in a single or multi-step process to previous calendar year); chemical compounds that contain a metal produce another declared UDOC. (b) No changes authorization form (i.e., the Group I Alkalis, Groups II Alkaline (2) Examples of UDOCs that you must Earths, the Transition Metals, or the elements (may be completed and submitted to BIS declare under part 715 include, but are not aluminum, gallium, indium, thallium, tin, limited to, the following, unless they are not when there are no changes to any lead, bismuth or polonium), and the elements isolated for use or sale as a specific end information in your plant site’s carbon and oxygen. Metal carbonates have product: previously submitted annual declaration the chemical formula Md(CO3)e, where d and (i) Acetophenone (CAS # 98–86–2); on past activities, except the certifying e denote integers and M represents a metal. (ii) 6-Chloro-2-methyl aniline (CAS # 87– official and the dates signed and Common metal carbonates are sodium 63–8); submitted); and carbonate (Na2CO3) and calcium carbonate (iii) 2-Amino-3-hydroxybenzoic acid (CAS (c) Amended declaration. (CaCO3). In addition, metal carbides or other # 548–93–6); and compounds consisting of only a metal, as (iv) Acetone (CAS # 67–64–1). Supplement No. 1 to Part 715—Definition of described in this Note, and carbon (e.g., (3) Examples of activities that are not an Unscheduled Discrete Organic Chemical calcium carbide (CaC2)), are exempt from considered production by synthesis under Unscheduled discrete organic chemical declaration requirements (see part 715 and, thus, the end products resulting means any chemical: (1) Belonging to the § 715.1(a)(2)(ii)(D)). from such activities would not be declared class of chemical compounds consisting of under part 715, are as follows: all compounds of carbon except for its Supplement No. 2 to Part 715—Examples of (i) Fermentation; oxides, sulfides and metal carbonates Unscheduled Discrete Organic Chemicals (ii) Extraction; identifiable by chemical name, by structural (UDOCs) and UDOC Production (iii) Purification; formula, if known, and by Chemical Abstract (1) Examples of UDOCs not subject to (iv) Distillation; and Service registry number, if assigned; and (2) declaration include: (v) Filtration.

SUPPLEMENT NO. 3 TO PART 715—DEADLINES FOR SUBMISSION OF DECLARATIONS, NO CHANGES AUTHORIZATION FORMS, AND AMENDMENTS FOR UNSCHEDULED DISCRETE ORGANIC CHEMICAL (UDOC) FACILITIES

Declarations Applicable forms Due dates

Annual Declaration on Past Activities (previous Certification, UDOC, A (as appropriate), B February 28 of the year following any cal- calendar year). (optional). endar year in which the production of Declared plant site UDOCs exceeded the applicable declara- tion threshold in § 715.1(a)(1) of the CWCR. No Changes Authorization Form (declaration No Changes Authorization Form ...... February 28 of the year following any cal- required, but no changes to data contained in endar year in which the production of previously submitted annual declaration on UDOCs exceeded the applicable declara- past activities (previous calendar year). tion threshold in § 715.1(a)(1) of the CWCR. Declared plant site Amended Declaration —Declaration information ...... Certification, UDOC, A (as appropriate), B —15 calendar days after change in informa- —Company information (optional). tion. —Post-inspection letter —30 calendar days after change in informa- tion. —45 calendar days after receipt of letter.

PART 716—INITIAL AND ROUTINE 716.3 Consent to inspections; warrants for Supplement No. 1 to Part 716—Notification, INSPECTIONS OF DECLARED inspections. Duration, and Frequency of Inspections. 716.4 Scope and conduct of inspections. FACILITIES Supplement No. 2 to Part 716—[Reserved]. 716.5 Notification, duration and frequency Supplement No. 3 to Part 716—[Reserved]. of inspections. Sec. 716.6 Facility agreements. Authority: 22 U.S.C. 6701 et seq.; E.O. 716.1 General information on the conduct 716.7 Samples. 13128, 64 FR 36703, 3 CFR, 1999 Comp., p. of initial and routine inspections. 716.8 On-site monitoring of Schedule 1 199. 716.2 Purposes and types of inspections of facilities. declared facilities. 716.9 Report of inspection-related costs. 716.10 Post inspection activities.

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§ 716.1 General information on the plant site is subject to an initial the impending inspection and, upon conduct of initial and routine inspections. inspection within the first year after request, to assist the facility with This part provides general submitting a declaration, if at least one inspection preparation; information about the conduct of initial plant on your plant site produced, (5) Escort the Inspection Team on-site and routine inspections of declared processed or consumed in any of the throughout the inspection process; facilities subject to inspection under three previous years, or you anticipate (6) Assist the Inspection Team with CWC Verification Annex Part VI (E), that at least one plant on your plant site verification activities; Part VII(B), Part VIII(B) and Part IX(B). will produce, process or consume in the (7) Negotiate the development of a See part 717 of this subchapter for next calendar year, any Schedule 2 site-specific facility agreement, if provisions concerning challenge chemical in excess of the threshold appropriate (see § 716.6); and inspections. quantities set forth in paragraphs (8) Ensure that an inspection adheres (a) Overview. Each State Party to the (b)(2)(i)(A) through (C) of this section. to the Convention, the Act and any CWC, including the United States, has warrant issued thereunder, and a site- agreed to allow certain inspections of Note to paragraph (b)(2): The applicable specific facility agreement, if concluded. declared facilities by inspection teams inspection threshold for Schedule 2 plant sites is ten times higher than the applicable § 716.2 Purposes and types of inspections employed by the Organization for the declaration threshold. Only declared plant of declared facilities. Prohibition of Chemical Weapons sites, comprising at least one declared plant (a) Schedule 1 facilities. (1) Purposes (OPCW) to ensure that activities are that exceeds the applicable inspection of inspections. The aim of inspections of consistent with obligations under the threshold, are subject to inspection. Schedule 1 facilities is to verify that: Convention. BIS is responsible for (3) Schedule 3 plant sites. Your (i) The facility is not used to produce leading, hosting and escorting declared plant site is subject to any Schedule 1 chemical, except for the inspections of all facilities subject to the inspection if the declared plants on your declared Schedule 1 chemicals; provisions of this subchapter (see plant site produced during the previous (ii) The quantities of Schedule 1 § 710.2 of this subchapter). chemicals produced, processed or (b) Declared facilities subject to initial calendar year, or you anticipate they will produce in the next calendar year, consumed are correctly declared and and routine inspections. (1) Schedule 1 consistent with needs for the declared facilities. (i) Your declared facility is in excess of 200 metric tons aggregate of any Schedule 3 chemical. purpose; and subject to inspection if it produced in (iii) The Schedule 1 chemical is not excess of 100 grams aggregate of Note to paragraph (b)(3): The methodology diverted or used for purposes other than Schedule 1 chemicals in the previous for determining a declarable and inspectable those declared. calendar year or anticipates producing plant site is different. A Schedule 3 plant site (2) Types of inspections. (i) Initial in excess of 100 grams aggregate of that submits a declaration is subject to inspections. (A) During initial Schedule 1 chemicals during the next inspection only if the aggregate production of inspections of declared Schedule 1 a Schedule 3 chemical at all declared plants facilities, in addition to the verification calendar year. on the plant site exceeds 200 metric tons. (ii) If you are a new Schedule 1 activities listed in paragraph (a)(1) of production facility pursuant to § 712.4 (4) Unscheduled discrete organic this section, the Host Team and the of the CWCR, your facility is subject to chemical plant sites. Your declared Inspection Team will draft site-specific an initial inspection within 200 days of plant site is subject to inspection if it facility agreements (see § 716.6) for the submitting an initial declaration. produced by synthesis more than 200 conduct of routine inspections. metric tons aggregate of unscheduled (B) For new Schedule 1 production Note to paragraph (b)(1): All Schedule 1 facilities declared pursuant to § 712.4 of facilities submitting a declaration are subject discrete organic chemicals (UDOC) to inspection. during the previous calendar year. the CWCR, the U.S. National Authority, in coordination with BIS, will conclude (2) Schedule 2 plant sites. (i) Your Note 1 to paragraph (b)(4): You must a facility agreement with the OPCW declared plant site is subject to include amounts of unscheduled discrete organic chemicals containing phosphorus, before the facility begins producing inspection if at least one plant on your sulfur or fluorine in the calculation of your above 100 grams aggregate of Schedule plant site produced, processed or plant site’s aggregate production of 1 chemicals. consumed, in any of the three previous unscheduled discrete organic chemicals. (ii) Routine inspections. During calendar years, or you anticipate that at routine inspections of declared least one plant on your plant site will Note 2 to paragraph (b)(4): All UDOC plant Schedule 1 facilities, the verification produce, process or consume in the next sites that submit a declaration based on activities listed in paragraph (a)(1) of calendar year, any Schedule 2 chemical § 715.1(a)(1)(i) of the CWCR are subject to a this section will be carried out pursuant routine inspection. in excess of the following: to site-specific facility agreements (A) 10 kg of chemical BZ: 3- (c) Responsibilities of the Department (§ 716.6) developed during the initial Quinuclidinyl benzilate (see Schedule of Commerce. As the host and escort for inspections and concluded between the 2, Part A, paragraph 3 in Supplement the international Inspection Team for all U.S. Government and the OPCW No. 1 to part 713 of this subchapter); inspections of facilities subject to the pursuant to the Convention. (B) 1 metric ton of chemical PFIB: provisions of the CWCR under this part, (b) Schedule 2 plant sites. (1) 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)- BIS will: Purposes of inspections. (i) The general 1-propene or any chemical belonging to (1) Lead on-site inspections; aim of inspections of declared Schedule the Amiton family (see Schedule 2, Part (2) Provide Host Team notification to 2 plant sites is to verify that activities A, paragraphs 1 and 2 in Supplement the facility of an impending inspection; are in accordance with obligations No. 1 to part 713 of this subchapter); or (3) Take appropriate action to obtain under the Convention and consistent (C) 10 metric tons of any chemical an administrative warrant in the event with the information provided in listed in Schedule 2, Part B (see the facility does not consent to the declarations. Particular aims of Supplement No. 1 to part 713 of this inspection; inspections of declared Schedule 2 subchapter). (4) Dispatch an advance team to the plant sites are to verify: (ii) Initial inspection for new vicinity of the site to provide (A) The absence of any Schedule 1 Schedule 2 plant sites. Your declared administrative and logistical support for chemical, especially its production,

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except in accordance with the the Inspection Team may draft site- the effective and timely provisions of the Convention; specific facility agreements for the accomplishment of its purpose as (B) Consistency with declarations of conduct of subsequent routine provided in the Convention. production, processing or consumption inspections (see § 716.6). Although the (b) Scope. (1) Description of of Schedule 2 chemicals; and Convention does not require facility inspections. During inspections, the (C) Non-diversion of Schedule 2 agreements for declared Schedule 3 Inspection Team: chemicals for activities prohibited plant sites, the owner, operator, (i) Will receive a pre-inspection under the Convention. occupant or agent in charge of a plant briefing from facility representatives; (ii) During initial inspections, site may request one. The Host Team (ii) Will visually inspect the facilities Inspection Teams shall collect will not seek a facility agreement if the or plants producing scheduled information to determine the frequency owner, operator, occupant or agent in chemicals or UDOCs, which may and intensity of subsequent inspections charge of the plant site does not request include storage areas, feed lines, by assessing the risk to the object and one. Subsequent routine inspections reaction vessels and ancillary purpose of the Convention posed by the will be carried out pursuant to site- equipment, control equipment, relevant chemicals, the characteristics of specific facility agreements, if associated laboratories, first aid or the plant site and the nature of the applicable. medical sections, and waste and effluent activities carried out there. The (d) Unscheduled discrete organic handling areas, as necessary to Inspection Team will take the following chemical plant sites. (1) Purposes of accomplish their inspection; criteria into account, inter alia: inspections. The general aim of (iii) May visually inspect other parts (A) The toxicity of the scheduled inspections of declared UDOC plant or areas of the plant site to clarify an chemicals and of the end-products sites is to verify that activities are ambiguity that has arisen during the produced with them, if any; consistent with the information inspection; (B) The quantity of the scheduled provided in declarations. The particular (iv) May take photographs or conduct chemicals typically stored at the aim of inspections is to verify the formal interviews of facility personnel; inspected site; absence of any Schedule 1 chemical, (v) May examine relevant records; and (vi) May take samples as provided by (C) The quantity of feedstock especially its production, except in the Convention, the Act and consistent chemicals for the scheduled chemicals accordance with the Convention. typically stored at the inspected site; (2) Routine inspections. During with the requirements set forth by the (D) The production capacity of the routine inspections of declared UDOC Director of the United States National Schedule 2 plants; and plant sites, in addition to the Authority, at 22 CFR part 103, and the (E) The capability and convertibility verification activities listed in paragraph facility agreement, if applicable. (2) Scope of consent. When an owner, for initiating production, storage and (d)(1) of this section, the Host Team and operator, occupant, or agent in charge of filling of toxic chemicals at the the Inspection Team may develop draft a facility consents to an initial or inspected site. site-specific facility agreements for the (2) Types of inspections. (i) Initial routine inspection, he or she is conduct of subsequent routine inspections. During initial inspections consenting to provide access to the inspections (see § 716.6). Although the of declared Schedule 2 plant sites, in Inspection Team and Host Team to any Convention does not require facility addition to the verification activities area of the facility, any item located on agreements for declared UDOC plant listed in paragraph (b)(1) of this section, the facility, interviews with facility sites, the owner, operator, occupant or the Host Team and the Inspection Team personnel, and any records necessary agent in charge of a plant site may will generally draft site-specific facility for the Inspection Team to complete its request one. The Host Team will not agreements for the conduct of routine mission pursuant to paragraph (a) of this seek a facility agreement if the owner, inspections (see § 716.6). section, except for information subject operator, occupant or agent in charge of (ii) Routine inspections. During to export control under ITAR (22 CFR the plant site does not request one. routine inspections of declared parts 120 through 130) (see paragraph Subsequent routine inspections will be Schedule 2 plant sites, the verification (b)(3) of this section). When consent is carried out pursuant to site-specific activities listed in paragraph (b)(1) of granted for an inspection, the owner, facility agreements, if applicable. this section will be carried out pursuant operator, occupant, or agent in charge to any appropriate site-specific facility § 716.3 Consent to inspections; warrants agrees to provide the same degree of agreements developed during the initial for inspections. access provided for under section 305 of inspections (see § 716.6), and concluded (a) The owner, operator, occupant or the Act. The determination of whether between the U.S. Government and the agent in charge of a facility may consent the Inspection Team’s request to inspect OPCW pursuant to the Convention and to an initial or routine inspection. The any area, building, item or record is the Act. individual giving consent on behalf of reasonable is the responsibility of the (c) Schedule 3 plant sites. (1) the facility represents that he or she has Host Team Leader. Purposes of inspections. The general the authority to make this decision for (3) ITAR-controlled technology. ITAR- aim of inspections of declared Schedule the facility. controlled technology shall not be 3 plant sites is to verify that activities (b) In instances where consent is not divulged to the Inspection Team are consistent with the information provided by the owner, operator, without U.S. Government authorization. provided in declarations. The particular occupant or agent in charge for an initial Facilities being inspected are aim of inspections is to verify the or routine inspection, BIS will seek responsible for the identification of absence of any Schedule 1 chemical, administrative warrants as provided by ITAR-controlled technology to the BIS especially its production, except in the Act. Host Team, if known. accordance with the Convention. (c) Pre-inspection briefing. Upon (2) Routine inspections. During § 716.4 Scope and conduct of inspections. arrival of the Inspection Team and Host routine inspections of declared (a) General. Each inspection shall be Team at the inspection site and before Schedule 3 plant sites, in addition to the limited to the purposes described in commencement of the inspection, verification activities listed in paragraph § 716.2 and shall be conducted in the facility representatives will provide the (c)(1) of this section, the Host Team and least intrusive manner, consistent with Inspection Team and Host Team with a

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pre-inspection briefing on the facility, supporting materials and facility, and the Host Team Leader will the activities carried out there, safety documentation. Such access will be take into consideration the facility’s measures, and administrative and provided in appropriate formats (e.g., input when providing official comments logistical arrangements necessary for the paper copies, electronic remote access on the preliminary findings to the inspection, which may be aided with by computer, microfilm, or microfiche) Inspection Team. This meeting will be the use of maps and other through the U.S. Government Host completed not later than 24 hours after documentation as deemed appropriate Team to Inspection Teams during the the completion of the inspection. by the facility. The time spent for the inspection period or as otherwise agreed briefing will be limited to the minimum upon by the Inspection Team and Host § 716.5 Notification, duration and frequency of inspections. necessary and may not exceed three Team Leader. If a facility does not have hours. access to records for activities that took (a) Inspection notification. (1)(i) (1) The pre-inspection briefing will place under previous ownership, the Content of notice. Inspections of address: previous owner must make such records facilities may be made only upon (i) Facility health and safety issues available to the Host Team for provision issuance of written notice by the United and requirements, and associated alarm to the Inspection Team in accordance States National Authority (USNA) to the systems; with section 305 of the Act. owner and to the operator, occupant or (ii) Declared facility activities, (f) Effect of facility agreements. agent in charge of the premises to be business and manufacturing operations; Routine inspections at facilities for inspected. BIS will also provide a (iii) Physical layout; which the United States has concluded separate inspection notification to the (iv) Delimitation of declared facility; a facility agreement with the OPCW will inspection point of contact identified in (v) Scheduled chemicals on the be conducted in accordance with the declarations submitted by the facility. If facility (declared and undeclared); facility agreement. The existence of a the United States is unable to provide (vi) Block flow diagram or simplified facility agreement does not in any way actual written notice to the owner, process flow diagram; limit the right of the owner, operator, operator, or agent in charge, BIS (or the (vii) Plants and units specific to occupant, or agent in charge of the Federal Bureau of Investigation, if BIS is declared operations; facility to withhold consent to an unable) may post notice prominently at (viii) Administrative and logistic inspection request. the facility to be inspected. The notice information; and (g) Hours of inspections. Consistent shall include all appropriate (ix) Data declaration updates/ with the provisions of the Convention, information provided by the OPCW to revisions. the Host Team will ensure, to the extent the USNA concerning: (2) The pre-inspection briefing may possible, that each inspection is (A) The type of inspection; also address, inter alia: commenced, conducted, and concluded (B) The basis for the selection of the (i) Introduction of key facility during ordinary working hours, but no facility or location for the type of personnel; inspection shall be prohibited or inspection sought; (ii) Management, organization and otherwise disrupted from commencing, (C) The time and date that the history; continuing or concluding during other inspection will begin and the period (iii) Confidential business information hours. covered by the inspection; and concerns; (h) Health and safety regulations and (D) The names and titles of the (iv) Types and location of records/ requirements. In carrying out their Inspection Team members. documents; activities, the Inspection Team and Host (ii) Consent to inspection. In addition (v) Draft facility agreement, if Team shall observe federal, state, and to appropriate information provided by applicable; and local health and safety regulations and the OPCW in its notification to the (vi) Proposed inspection plan. health and safety requirements USNA, BIS’s inspection notification will (d) Visual plant inspection. The established at the inspection site, request that the facility indicate whether Inspection Team may visually inspect including those for the protection of it will consent to an inspection, and will the declared plant or facility and other controlled environments within a state whether an advance team is areas or parts of the plant site as agreed facility and for personal safety. Such available to assist the site in preparation by the Host Team Leader after health and safety regulations and for the inspection. If an advance team is consulting with the facility requirements will be set forth in, but available, facilities that request advance representative. will not necessarily be limited to, the team assistance are not required to (e) Records review. The facility must facility agreement, if applicable. reimburse the U.S. Government for costs provide the Inspection Team with (i) Preliminary findings. Upon associated with these activities. If a access to all supporting materials and completion of an inspection, the facility does not agree to provide documentation used by the facility to Inspection Team will meet with the consent to an inspection within four prepare declarations and to comply with Host Team and facility personnel to hours of receipt of the inspection the CWCR (see §§ 721.1 and 721.2 of the review the written preliminary findings notification, BIS will seek an CWCR) and with appropriate of the Inspection Team and to clarify administrative warrant. accommodations in which the ambiguities. The Host Team will discuss (iii) The following table sets forth the Inspection Team can review these the preliminary findings with the notification procedures for inspection:

TABLE TO § 716.5(a)(1)

Activity Agency Action Facility action

(A) OPCW notification of in- (1) U.S. National Authority transmits actual written no- Acknowledges receipt of facsimile. spection. tice and inspection authorization to the owner and operator, occupant, or agent in charge via facsimile within 6 hours.

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TABLE TO § 716.5(a)(1)—Continued

Activity Agency Action Facility action

(2) Upon notification from the U.S. National Authority, (A) Indicates whether it grants consent. BIS immediately transmits inspection notification via (B) May request advance team support. No require- facsimile to the inspection point of contact to ascer- ment for reimbursement of U.S. Government serv- tain whether the facility (i) grants consent and (ii) re- ices. quests assistance in preparing for the inspection. In absence of consent within four hours of facility re- ceipt, BIS intends to seek an administrative warrant. (B) Preparation for inspec- BIS advance team generally arrives in the vicinity of the If advance team support is provided, facility works with tion. facility to be inspected 1–2 days after OPCW notifica- the advance team oninspection-related issues. tion for logistical and administrative preparations.

(2) Timing of notice. (i) Schedule 1 as possible after the OPCW notifies the and preliminary findings are in addition facilities. For declared Schedule 1 USNA of the inspection. to inspection activities. See § 716.4(c) facilities, the Technical Secretariat will (b) Period of inspections. (1) Schedule and (i) for a description of these notify the USNA of an initial inspection 1 facilities. For a declared Schedule 1 activities. not less than 72 hours prior to arrival of facility, the Convention does not specify (c) Frequency of inspections. The the Inspection Team in the United a maximum duration for an initial frequency of inspections is as follows: States, and will notify the USNA of a inspection. The estimated period of (1) Schedule 1 facilities. As provided routine inspection not less than 24 routine inspections will be as stated in by the Convention, the frequency of hours prior to arrival of the Inspection the facility agreement, unless extended inspections at declared Schedule 1 Team in the United States. The USNA by agreement between the Inspection facilities is determined by the OPCW will provide written notice to the owner Team and the Host Team Leader, and based on the risk to the object and and to the operator, occupant or agent will be based on the risk to the object purpose of the Convention posed by the in charge of the premises within six and purpose of the Convention posed by quantities of chemicals produced, the hours of receiving notification from the the quantities of chemicals produced, characteristics of the facility and the OPCW Technical Secretariat or as soon the characteristics of the facility and the nature of the activities carried out at the as possible thereafter. BIS will provide nature of the activities carried out there. facility. The frequency of inspections will be stated in the facility agreement. Host Team notice to the inspection The Host Team Leader will consult with (2) Schedule 2 plant sites. As point of contact of the facility as soon the inspected facility on any request for extension of an inspection prior to provided by the Convention and the as possible after the OPCW notifies the Act, the maximum number of USNA of the inspection. making an agreement with the Inspection Team. Activities involving inspections at declared Schedule 2 plant (ii) Schedule 2 plant sites. For sites is 2 per calendar year per plant the pre-inspection briefing and declared Schedule 2 plant sites, the site. The OPCW will determine the preliminary findings are in addition to Technical Secretariat will notify the frequency of routine inspections for inspection activities. See § 716.4(c) and USNA of an initial or routine inspection each declared Schedule 2 plant site (i) for a description of these activities. not less than 48 hours prior to arrival of based on the Inspection Team’s (2) Schedule 2 plant sites. For the Inspection Team at the plant site to assessment of the risk to the object and declared Schedule 2 plant sites, the be inspected. The USNA will provide purpose of the Convention posed by the maximum duration of initial and written notice to the owner and to the relevant chemicals, the characteristics of routine inspections shall be 96 hours, operator, occupant or agent in charge of the plant site, and the nature of the unless extended by agreement between the premises within six hours of activities carried out there. The the Inspection Team and the Host Team frequency of inspections will be stated receiving notification from the OPCW Leader. The Host Team Leader will in the facility agreement, if applicable. Technical Secretariat or as soon as consult with the inspected plant site on possible thereafter. BIS will provide (3) Schedule 3 plant sites. As any request for extension of an provided by the Convention, no Host Team notice to the inspection inspection prior to making an agreement point of contact at the plant site as soon declared Schedule 3 plant site may with the Inspection Team. Activities receive more than two inspections per as possible after the OPCW notifies the involving the pre-inspection briefing USNA of the inspection. calendar year and the combined number and preliminary findings are in addition of inspections of Schedule 3 and UDOC (iii) Schedule 3 and UDOC plant sites. to inspection activities. See § 716.4(c) plant sites in the United State may not For declared Schedule 3 and UDOC and (i) for a description of these exceed 20 per calendar year. plant sites, the Technical Secretariat activities. (4) UDOC plant sites. As provided by will notify the USNA of a routine (3) Schedule 3 and UDOC plant sites. the Convention, no declared UDOC inspection not less than 120 hours prior For declared Schedule 3 or UDOC plant plant site may receive more than two to arrival of the Inspection Team at the sites, the maximum duration of routine inspections per calendar year and the plant site to be inspected. The USNA inspections shall be 24 hours, unless combined number of inspections of will provide written notice to the owner extended by agreement between the Schedule 3 and UDOC plant sites in the and to the operator, occupant or agent Inspection Team and the Host Team United States may not exceed 20 per in charge of the premises within six Leader. The Host Team Leader will calendar year. hours of receiving notification from the consult with the inspected plant site on OPCW Technical Secretariat or as soon any request for extension of an § 716.6 Facility agreements. as possible thereafter. BIS will provide inspection prior to making an agreement (a) Description and requirements. A Host Team notice to the inspection with the Inspection Team. Activities facility agreement is a site-specific point of contact of the plant site as soon involving the pre-inspection briefing agreement between the U.S.

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Government and the OPCW. Its purpose agent in charge of the facility may with on-site instruments as provided by is to define procedures for inspections observe facility agreement negotiations the Convention. For facilities subject to of a specific declared facility that is between the U.S. Government and the CWCR, however, such monitoring is subject to inspection because of the type OPCW. As a general rule, BIS will not anticipated. The U.S. Government or amount of chemicals it produces, consult with the affected facility on the will ensure that any monitoring that processes or consumes. contents of the agreements and take may be requested by the OPCW is (1) Schedule 1 facilities. The facility’s into consideration during carried out pursuant to the Convention Convention requires that facility negotiations. BIS will participate in the and U.S. law. agreements be concluded between the negotiation of, and approve, all final United States and the OPCW for all facility agreements with the OPCW. § 716.9 Report of inspection-related costs. declared Schedule 1 facilities. For new Facilities will be notified of and have Schedule 1 production facilities the right to observe final facility Pursuant to section 309(b)(5) of the declared pursuant to § 712.4 of the agreement negotiations between the Act, any facility that has undergone any CWCR, the U.S. National Authority, in United States and OPCW to the inspections pursuant to the CWCR coordination with Department of maximum extent practicable, consistent during a given calendar year must report Commerce, will conclude a facility with the Convention. Prior to the to BIS within 90 days of an inspection agreement with the OPCW before the conclusion of a final facility agreement, on its total costs related to that facility begins producing above 100 the affected facility will have an inspection. Although not required, such grams aggregate of Schedule 1 opportunity to comment on the facility reports should identify categories of chemicals. agreement. BIS will give consideration costs separately if possible, such as (2) Schedule 2 plant sites. The USNA to such comments prior to approving personnel costs (production-line, will ensure that such facility agreements final facility agreements with the administrative, legal), costs of are concluded with the OPCW unless OPCW. The United States National producing records, and costs associated the owner, operator, occupant or agent Authority shall ensure that facility with shutting down chemical in charge of the plant site and the agreements for Schedule 1, Schedule 2, production or processing during OPCW Technical Secretariat agree that Schedule 3 and UDOC facilities are inspections, if applicable. This such a facility agreement is not concluded, as appropriate, with the information should be reported to BIS necessary. OPCW in coordination with BIS. on company letterhead at the address (3) Schedule 3 and UDOC plant sites. (c) [Reserved] (d) Further information. For further given in § 716.6(d), with the following If the owner, operator, occupant or agent notation: ‘‘Attn: Report of inspection- in charge of a declared Schedule 3 or information about facility agreements, related costs.’’ UDOC plant site requests a facility please write or call: Treaty Compliance agreement, the USNA will ensure that a Division, Bureau of Industry and § 716.10 Post inspection activities. facility agreement for such a plant site Security, U.S. Department of Commerce, is concluded with the OPCW. 1555 Wilson Boulevard, Suite 700, BIS will forward a copy of the final (b) Notification; negotiation of draft Arlington, VA 22209, Telephone: (703) inspection report to the inspected and final facility agreements; and 605–4400. facility for their review upon receipt from the OPCW. Facilities may submit conclusion of facility agreements. Prior § 716.7 Samples. to the development of a facility comments on the final inspection report The owner, operator, occupant or agreement, BIS shall notify the owner, to BIS, and BIS will consider them, to agent in charge of a facility must operator, occupant, or agent in charge of the extent possible, when commenting provide a sample as provided for in the the facility, and if the owner, operator, Convention and consistent with on the final report. BIS will also send occupant or agent in charge so requests, requirements set forth by the Director of facilities a post-inspection letter the notified person may participate in the United States National Authority in detailing the issues that require follow- preparations with BIS representatives 22 CFR part 103. Analysis will be up action, e.g., amended declaration for the negotiation of such an restricted to verifying the absence of requirement (see §§ 712.7(d), 713.5(d), agreement. During the initial or routine undeclared scheduled chemicals, unless 714.4(d), and 715.2(c) of the CWCR), inspection of a declared facility, the otherwise agreed after consultation with information on the status of the draft Inspection Team and the Host Team the facility representative. facility agreement, if applicable, and the will negotiate a draft facility agreement date on which the report on inspection- or amendment to a facility agreement. § 716.8 On-site monitoring of Schedule 1 related costs (see § 716.9 of the CWCR) facilities. To the maximum extent practicable is due to BIS. consistent with the Convention, the Declared Schedule 1 facilities are owner and the operator, occupant or subject to verification by monitoring

SUPPLEMENT NO. 1 TO PART 716 NOTIFICATION, DURATION AND FREQUENCY OF INSPECTIONS

Unscheduled discrete or- Schedule 1 Schedule 2 Schedule 3 ganic chemicals

Notice of initial or routine 72 hours prior to arrival of 48 hours prior to arrival of 120 hours prior to arrival 120 hours prior to arrival inspection to USNA. Inspection Team at the Inspection Team at the of Inspection Team at of Inspection Team at point of entry (initial; 24 plant site. the plant site. the plant site. hours prior to arrival of Inspection Team at the point of entry (routine). Duration of inspection ...... As specified in facility 96 hours ...... 24 hours ...... 24 hours. agreement.

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SUPPLEMENT NO. 1 TO PART 716 NOTIFICATION, DURATION AND FREQUENCY OF INSPECTIONS—Continued

Unscheduled discrete or- Schedule 1 Schedule 2 Schedule 3 ganic chemicals

Maximum number of in- Determined by OPCW 2 per calendar year per 2 per calendar year per 2 per calendar year per spections. based on characteristics plant site. plant site. plant site. of facility and the nature of the activities carried out at the facility.

Notification of challenge in- 12 hours prior to arrival of inspection team at the point of entry spection to USNA*.

Duration of Challenge 84 hours inspection*. * See part 717 of this subchapter

Supplement No. 2 To Part 716—[RESERVED] person or facility subject to the Article of entry. Written notice will be provided Supplement No. 3 To Part 716—[RESERVED] IX clarification as early as practical to the owner and to the operator, prior to the issuance of an official occupant, or agent in charge of the PART 717—CLARIFICATION OF written request for clarification. premises at any appropriate time POSSIBLE NON-COMPLIANCE WITH determined by the USNA after receipt of § 717.2 Challenge inspections. THE CONVENTION; CHALLENGE notification from the OPCW Technical INSPECTION PROCEDURES Persons or facilities, whether or not Secretariat. they are required to submit declarations (2)(i) Content of notice. The notice Sec. or reports, may be subject to a challenge shall include all appropriate 717. 1 Clarification procedures; challenge inspection by the OPCW concerning information provided by the OPCW to inspection requests pursuant to Article possible non-compliance with the the United States National Authority IX of the Convention. requirements of the Convention, other concerning: 717.2 Challenge inspections. than U.S. Government facilities as 717.3 Samples. (A) The type of inspection; 717.4 Report of inspection-related costs. defined in § 710.2(a). BIS will host and (B) The basis for the selection of the 717.5 Post inspection activities. escort the international Inspection Team facility or locations for the type of for challenge inspections in the United inspection sought; Authority: 22 U.S.C. 6701 et seq., 2681; States of such persons or facilities. E.O. 13128, 64 FR 36703, 3 CFR, 1999 Comp., (C) The time and date that the p. 199. (a) Warrants. In instances where inspection will begin and the period consent is not provided by the owner, covered by the inspection; § 717.1 Clarification procedures; challenge operator, occupant or agent in charge of (D) The names and titles of the inspection requests pursuant to Article IX the facility or location, BIS will assist Inspection Team members; and of the Convention. the Department of Justice in seeking a (E) All appropriate evidence or (a) Article IX of the Convention sets criminal warrant as provided by the Act. reasons provided by the requesting State forth procedures for clarification, The existence of a facility agreement Party for seeking the inspection. between States Parties, of issues about does not in any way limit the right of (ii) In addition to appropriate compliance with the Convention. States the operator of the facility to withhold information provided by the OPCW in Parties may attempt to resolve such consent to a challenge inspection its notification to the USNA, BIS’s issues through consultation between request. inspection notification to the facility themselves or through the Organization (b) Notification of challenge will state whether an advance team is for the Prohibition of Chemical inspection. Challenge inspections may available to assist the site in preparation Weapons (OPCW) or a State Party may be made only upon issuance of written for the inspection. If an advance team is request the OPCW to conduct an on-site notice by the United States National available, facilities that request advance challenge inspection of any facility or Authority (USNA) to the owner and to team assistance are not required to location in the territory or in any other the operator, occupant or agent in reimburse the U.S. Government for costs place under the jurisdiction or control charge of the premises. BIS will provide associated with these activities. If a of any other State Party. Such an on-site inspection notification to the inspection facility does not agree to provide challenge inspection request shall be for point of contact at such time that a consent to an inspection within four the sole purpose of clarifying and person or facility has been clearly hours of receipt of the inspection resolving any questions concerning established, if possible, and when such notification, BIS will assist the possible non-compliance with the notification is deemed appropriate. If Department of Justice in seeking a Convention. the United States is unable to provide criminal warrant. (b) Any person or facility subject to actual written notice to the owner, (c) Period of inspection. Challenge the CWCR (15 CFR parts 710 through operator, or agent in charge, BIS (or inspections will not exceed 84 hours, 729) must, within five working days another appropriate agency, if BIS is unless extended by agreement between from receipt of an official written BIS unable) may post notice prominently at the Inspection Team and the Host Team request for clarification, provide the plant, plant site or other facility or Leader. information required by BIS pursuant to location to be inspected. (d) Scope and conduct of inspections. an Article IX clarification request from (1) Timing. The OPCW will notify the (1) General. Each inspection shall be another State Party, or the OPCW, USNA of a challenge inspection not less limited to the purposes described in this concerning possible non-compliance than 12 hours before the planned arrival section and conducted in the least with the CWC. BIS will contact the of the Inspection Team at the U.S. point intrusive manner, consistent with the

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effective and timely accomplishment of chemicals, or appropriate degradation (g) Data maintained for compliance its purpose as provided in the products, unless agreed otherwise. with environmental or occupational Convention. health and safety regulations; § 717.4 Report of inspection-related costs. (2) Scope of inspections. If an owner, (h) Data on personnel and vehicles operator, occupant, or agent in charge of Pursuant to section 309(b)(5) of the entering and personnel and personal a facility or location consents to a Act, any facility that has undergone any passenger vehicles exiting the site; challenge inspection, the inspection inspections pursuant to this subchapter (i) Any chemical structure; will be conducted in accordance with during a given calendar year must report (j) Any plant design, process, the provisions of Article IX and to BIS within 90 days of an inspection technology or operating method; applicable provisions of the Verification on its total costs related to that (k) Any operating requirement, input, Annex of the Convention. If consent is inspection. Although not required, such or result that identifies any type or not granted, the inspection will be reports should identify categories of quantity of chemicals used, processed or conducted in accordance with a costs separately if possible, such as produced; (l) Any commercial sale, shipment or criminal warrant, as provided by the personnel costs (production-line, administrative, legal), costs of use of a chemical; or Act, and in accordance with the (m) Information that qualifies as a provisions of Article IX and applicable producing records, and costs associated with shutting down chemical trade secret under 5 U.S.C. 552(b)(4) provisions of the Verification Annex of (Freedom of Information Act), provided the Convention. production or processing during inspections, if applicable. This such trade secret is obtained from a U.S. (3) Hours of inspections. Consistent information should be reported to BIS person or through the U.S. Government. with the provisions of the Convention, on company letterhead at the address the Host Team will ensure, to the extent § 718.2 Identification of confidential given in § 716.6(d) of this subchapter, possible, that each inspection is business information. with the following notation: ‘‘ATTN: commenced, conducted, and concluded (a) General. Certain confidential Report of Inspection-related Costs.’’ during ordinary working hours, but no business information submitted to BIS inspection shall be prohibited or § 717.5 Post inspection activities. in declarations and reports does not otherwise disrupted from commencing, BIS will forward a copy of the final need to be specifically identified and continuing or concluding during other inspection report to the inspected marked by the submitter, as described in hours. facility for their review upon receipt paragraph (b) of this section. Other (4) Health and safety regulations and from the OPCW. Facilities may submit confidential business information requirements. In carrying out their comments on the final inspection report submitted to BIS in declarations and activities, the Inspection Team and Host to BIS, and BIS will consider them, to reports and confidential business Team shall observe federal, state, and the extent possible, when commenting information provided to the Host Team local health and safety regulations and on the final report. BIS will also send during inspections must be identified by health and safety requirements facilities a post-inspection letter the inspected facility so that the Host established at the inspection site, detailing the issues that require follow- Team can arrange appropriate marking including those for the protection of up action and the date on which the and handling. controlled environments within a report on inspection-related costs (see (b) Confidential business information facility and for personal safety. § 717.4 of the CWCR) is due to BIS. contained in declarations and reports. (5) Pre-inspection briefing. Upon (1) BIS has identified those data fields arrival of the Inspection Team and the PART 718—CONFIDENTIAL BUSINESS on the declaration and report forms that Host Team in the vicinity of the INFORMATION request ‘‘confidential business inspection site and before information’’ as defined by the Act. Sec. commencement of the inspection, These data fields are identified in the 718.1 Definition. table provided in Supplement No. 1 to facility representatives will provide the 718.2 Identification of confidential business Inspection Team and the Host Team information. this part. with a pre-inspection briefing 718.3 Disclosure of confidential business (2) You must specifically identify in concerning the facility, the activities information. a cover letter submitted with your carried out there, safety measures, and Supplement No. 1 to Part 718—Confidential declaration or report any additional administrative and logistical Business Information Declared or information on a declaration or report arrangements necessary for the Reported form (i.e., information not provided in inspection, which may be aided with Authority: 22 U.S.C. 6701 et seq.; E.O. one of the data fields listed in the table the use of maps and other 13128, 64 FR 36703, 3 CFR, 1999 Comp., p. included in Supplement No. 1 to this documentation as deemed appropriate 199. part), including information provided in attachments to Form A or Form B, that by the facility. The time spent for the § 718.1 Definition. briefing will be limited to the minimum you believe is confidential business The Chemical Weapons Convention information, as defined by the Act, and necessary and may not exceed three Implementation Act of 1998 (‘‘the Act’’) hours. must describe how disclosure would defines confidential business likely result in competitive harm. § 717.3 Samples. information as information included in categories specifically identified in Note to paragraph (b): BIS has also The owner, operator, occupant or sections 103(g)(1) and 304(e)(2) of the determined that descriptions of Schedule 1 agent in charge of a facility or location facilities submitted with Initial Declarations Act and other trade secrets as follows: as attachments to Form A contain must provide a sample, as provided for (a) Financial data; in the Convention and consistent with confidential business information, as defined (b) Sales and marketing data (other by the Act. requirements set forth by the Director of than shipment data); the United States National Authority in (c) Pricing data; (c) Confidential business information 22 CFR part 103. Analysis may be (d) Personnel data; contained in advance notifications. restricted to verifying the presence or (e) Research data; Information contained in advance absence of Schedule 1, 2, or 3 (f) Patent data; notifications of exports and imports of

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Schedule 1 chemicals is not subject to Disclosure of such information will be in the performance of their official the confidential business information in accordance with the provisions of the duties. provisions of the Act. You must identify relevant statutory and regulatory (iii) U.S. Government designation of information in your advance authorities as follows: information to the Technical notifications of Schedule 1 imports that (1) Exports of Schedule 1 chemicals. Secretariat. It is the policy of the U.S. you consider to be privileged and Confidentiality of all information Government to designate all facility confidential, and describe how contained in these advance notifications information it provides to the Technical disclosure would likely result in will be maintained consistent with the Secretariat in declarations, reports and competitive harm. See § 718.3(b) for non-disclosure provisions of the Export Schedule 1 advance notifications as provisions on disclosure to the public of Administration Regulations (15 CFR ‘‘protected.’’ It is the policy of the U.S. such information by the U.S. parts 730 through 799), the International Government to designate confidential Government. Traffic in Arms Regulations (22 CFR business information that it discloses to (d) Confidential business information parts 120 through 130), and applicable Inspection Teams during inspections as related to inspections disclosed to, exemptions under the Freedom of ‘‘protected’’ or ‘‘highly protected,’’ reported to, or otherwise acquired by, Information Act, as appropriate; and depending on the sensitivity of the the U.S. Government. (1) During (2) Imports of Schedule 1 chemicals. information. The Technical Secretariat inspections, certain confidential Confidentiality of information contained is responsible for storing and limiting business information, as defined by the in these advance notifications will be access to any confidential business Act, may be disclosed to the Host Team. maintained pursuant to applicable information contained in a document Facilities being inspected are exemptions under the Freedom of according to its established procedures. responsible for identifying confidential Information Act. (2) Disclosure to Congress. Section (c) Disclosure of confidential business business information to the Host Team, 404(b)(2) of the Act provides that the information pursuant to § 404(b) of the so that if it is disclosed to the Inspection U.S. Government must disclose Act. (1) Disclosure to the Organization Team, appropriate marking and confidential business information to any for the Prohibition of Chemical handling can be arranged, in accordance committee or subcommittee of Congress with the provisions of the Convention Weapons (OPCW). (i) As provided by Section 404(b)(1) of with appropriate jurisdiction upon the (see § 718.3(c)(1)(ii)). Confidential written request of the chairman or business information not related to the the Act, the U.S. Government will disclose or otherwise provide ranking minority member of such purpose of an inspection or not committee or subcommittee. No such necessary for the accomplishment of an confidential business information to the Technical Secretariat of the OPCW or to committee or subcommittee, and no inspection, as determined by the Host member and no staff member of such Team, may be removed from sight, other States Parties to the Convention, in accordance with provisions of the committee or subcommittee, may shrouded, or otherwise not disclosed. disclose such information or material (2) Before or after inspections, Convention, particularly with the provisions of the Annex on the except as otherwise required or confidential business information authorized by law. related to an inspection that is Protection of Confidential Information (3) Disclosure to other Federal contained in any documents or that is (Confidentiality Annex). agencies for law enforcement actions reported to, or otherwise acquired by, (ii) Convention provisions. (A) The and disclosure in enforcement the U.S. Government, such as facility Convention provides that States Parties proceedings under the Act. Section information for pre-inspection briefings, may designate information submitted to 404(b)(3) of the Act provides that the facility agreements, and inspection the Technical Secretariat as U.S. Government must disclose reports, must be identified by the confidential, and requires the OPCW to confidential business information to facility so that it may be appropriately limit access to, and prevent disclosure other Federal agencies for enforcement marked and handled. If the U.S. of, information so designated, except of the Act or any other law, and must Government creates derivative that the OPCW may disclose certain disclose such information when documents from such documents or confidential information submitted in relevant in any proceeding under the reported information, they will also be declarations to other States Parties if Act. Disclosure will be made in such marked and handled as confidential requested. The OPCW has developed a manner as to preserve confidentiality to business information. classification system whereby States Parties may designate the information the extent practicable without impairing § 718.3 Disclosure of confidential they submit in their declarations as the proceeding. Section 719.14(b) of the business information. ‘‘restricted,’’ ‘‘protected,’’ or ‘‘highly CWCR provides that all hearings will be (a) General. Confidentiality of protected,’’ depending on the sensitivity closed, unless the Administrative Law information will be maintained by BIS of the information. Other States Parties Judge for good cause shown determines consistent with the non-disclosure are obligated, under the Convention, to otherwise. Section 719.20 of the CWCR provisions of the Act, the Export store and restrict access to information provides that parties may request that Administration Regulations (15 CFR which they receive from the OPCW in the administrative law judge segregate parts 730 through 799), the International accordance with the level of and restrict access to confidential Traffic in Arms Regulations (22 CFR confidentiality established for that business information contained in parts 120 through 130), and applicable information. material in the record of an enforcement exemptions under the Freedom of (B) OPCW Inspection Team members proceeding. Information Act, as appropriate. are prohibited, under the terms of their (4) Disclosure to the public; national (b) Disclosure of confidential business employment contracts and pursuant to interest determination. Section 404(c) of information contained in advance the Confidentiality Annex of the the Act provides that confidential notifications. Information contained in Convention, from disclosing to any business information, as defined by the advance notifications of exports and unauthorized persons, for five years Act, that is in the possession of the U.S. imports of Schedule 1 chemicals is not after termination of their employment, Government, is exempt from public subject to the confidential business any confidential information coming to disclosure in response to a Freedom of information provisions of the Act. their knowledge or into their possession Information Act request, except when

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such disclosure is determined to be in SUPPLEMENT NO. 1 TO PART 718— procedures for certain violations of the the national interest. CONFIDENTIAL BUSINESS INFORMA- Act. The three categories of violations (i) National interest determination. TION DECLARED OR REPORTED*— are as follows: The United States National Authority Continued (1) Violations of the Act subject to administrative and criminal (USNA), in coordination with the CWC FORMS A and B and at- Case-by-case; enforcement proceedings. This CWCR interagency group, shall determine on a tachments (all Sched- must be identi- sets forth in § 719.2 violations for which case-by-case basis if disclosure of ules and UDOCs). fied by sub- the statutory basis is the Act. BIS confidential business information in mitter. investigates these violations and, for response to a Freedom of Information * This table lists those data fields on the administrative proceedings, prepares Act request is in the national interest. Declaration and Report Forms that request charges, provides legal representation to (ii) Notification of intent to disclose ‘‘confidential business information’’ (CBI) as the U.S. Government, negotiates defined by the Act (sections 103(g) and pursuant to a national interest 304(e)(2)). As provided by section 404(a) of settlements, and makes determination. The Act provides for the Act, CBI is exempt from disclosure in re- recommendations to officials of the notification to the affected person of sponse to a Freedom of Information Act Department of State with respect to the (FOIA) request under sections 552(b)(3) and initiation and resolution of proceedings. intent to disclose confidential business 552(b)(4) (5 U.S.C.A. 552(b)(3)–(4)), unless a information based on the national determination is made, pursuant to section The administrative procedures interest, unless such notification of 404(c) of the Act, that such disclosure is in the applicable to these violations are found intent to disclose is contrary to national national interest. Other FOIA exemptions to in §§ 719.5 through 719.22 of this part. disclosure may also apply. You must identify The Department of State gives notice of security or law enforcement needs. If, CBI provided in Form A and/or Form B attach- after coordination with the agencies that ments, and provide the reasons supporting initiation of administrative proceedings constitute the CWC interagency group, your claim of confidentiality, except that and issues orders imposing penalties Schedule 1 facility technical descriptions sub- the USNA does not determine that such pursuant to 22 CFR part 103, subpart C. mitted with initial declarations are always con- (2) Violations of the International notification of intent to disclose is sidered to include CBI. If you believe that in- Emergency Economic Powers Act contrary to national security or law formation you are submitting in a data field (IEEPA) subject to judicial enforcement enforcement needs, the USNA will marked ‘‘none’’ in the Table is CBI, as defined by the Act, you must identify the specific infor- proceedings. Section 719.3 sets forth notify the person that submitted the mation and provide the reasons supporting violations of the Chemical Weapons information and the person to whom the your claim of confidentiality in a cover letter. Convention for which the statutory basis information pertains of the intent to PART 719—ENFORCEMENT is the IEEPA. BIS refers these violations disclose the information. to the Department of Justice for civil or Sec. criminal judicial enforcement. SUPPLEMENT NO. 1 TO PART 718— 719.1 Scope and definitions. (3) Violations and sanctions under the CONFIDENTIAL BUSINESS INFORMA- 719.2 Violations of the Act subject to Act not subject to proceedings under the TION DECLARED OR REPORTED* administrative and criminal enforcement CWCR. Section 719.4 sets forth proceedings. 719.3 Violations of the IEEPA subject to violations and sanctions under the Act Schedule 1 forms: Fields containing judicial enforcement proceedings. that are not violations of the CWCR and confidential busi- 719.4 Violations and sanctions under the that are not subject to proceedings ness information Act not subject to proceedings under the under the CWCR. This section is Certification Form ...... NONE CWCR. included solely for informational Form 1–1 ...... NONE 719.5 Initiation of administrative purposes. BIS may assist in Form 1–2 ...... All fields proceedings. investigations of these violations, but Form 1–2A ...... All fields 719.6 Request for hearing and answer. has no authority to initiate any Form 1–2B ...... All fields 719.7 Representation. 719.8 Filing and service of papers other enforcement action under the CWCR. Form 1–3 ...... All fields than the NOVA. Form 1–4 ...... All fields Note to paragraph (a): This part 719 does 719.9 Summary decision. not apply to violations of the export Schedule 2 Forms: 719.10 Discovery. Certification Form ...... NONE requirements imposed pursuant to the 719.11 Subpoenas. Chemical Weapons Convention and set forth Form 2–1 ...... NONE 719.12 Matters protected against disclosure. in the Export Administration Regulations Form 2–2 ...... Question 2–2.8 719.13 Prehearing conference. (EAR) (15 CFR parts 730 through 799) and in Form 2–3 ...... All fields 719.14 Hearings. the International Traffic in Arms Regulations Form 2–3A ...... All fields 719.15 Procedural stipulations. (ITAR) (22 CFR parts 120 through 130). Form 2–3B ...... All fields 719.16 Extension of time. Form 2–3C ...... All fields 719.17 Post-hearing submissions. (b) Definitions. The following are 719.18 Decisions. Form 2–4 ...... All fields definitions of terms as used only in 719.19 Settlement. Schedule 3 Forms: parts 719 and 720. For definitions of 719.20 Record for decision. terms applicable to parts 710 through Certification Form ...... NONE 719.21 Payment of final assessment. Form 3–1 ...... NONE 719.22 Reporting a violation. 722 of this subchapter, see part 710 of Form 3–2 NONE. this subchapter. Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. Form 3–3 All fields. The Act. The Chemical Weapons 1601 et seq.; 50 U.S.C. 1701 et seq.; E.O. Form 3–4 All fields. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. Convention Implementation Act of 1998 Unscheduled Discrete 950, E.O. 13128, 64 FR 36703, 3 CFR, 1999 (22 U.S.C. 6701–6777). Organic Chemicals Comp., p. 199. Assistant Secretary for Export Forms Enforcement. The Assistant Secretary Certification Form ...... NONE § 719.1 Scope and definitions. for Export Enforcement, Bureau of Form UDOC ...... NONE (a) Scope. This part 719 describes the Industry and Security, United States various sanctions that apply to Department of Commerce. violations of the Act and the CWCR. It Final decision. A decision or order also establishes detailed administrative assessing a civil penalty, or otherwise

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disposing of or dismissing a case, which record exempt from disclosure under (c) Criminal penalty. Whoever is not subject to further administrative the Act or this subchapter as set forth in willfully violates paragraph (a)(1) or (2) review, but which may be subject to paragraph (a)(2) of this section, shall of this section shall, upon conviction, be collection proceedings or judicial pay a civil penalty in an amount not to fined not more than $50,000, or, if a review in an appropriate Federal court exceed $5,000 for each violation. natural person, imprisoned for not more as authorized by law. (c) Criminal penalty. Any person that than ten years, or both; and any officer, IEEPA. The International Emergency knowingly violates the Act by willfully director, or agent of any corporation Economic Powers Act, as amended (50 failing or refusing to permit entry or who knowingly participates in such U.S.C. 1701–1706). inspection authorized by the Act; or by violation may be punished by like fine, Office of Chief Counsel. The Office of willfully disrupting, delaying or imprisonment, or both.2 Chief Counsel for Industry and Security, otherwise impeding an inspection United States Department of Commerce. authorized by the Act; or by willfully § 719.4 Violations and sanctions under the Report. For purposes of parts 719 and Act not subject to proceedings under the failing or refusing to establish or CWCR. 720 of the CWCR, the term ‘‘report’’ maintain any required record, or to means any declaration, report, or submit any required report, notice, or (a) Criminal penalties for advance notification required under other information; or by willfully failing development or use of a chemical parts 712 through 715 of the CWCR. or refusing to permit access to or weapon. Any person who violates 18 Respondent. Any person named as the copying of any record exempt from U.S.C. 229 shall be fined, or imprisoned subject of a letter of intent to charge, or disclosure under the Act or the CWCR, for any term of years, or both. Any a Notice of Violation and Assessment shall, in addition to or in lieu of any person who violates 18 U.S.C. 299 and (NOVA) and proposed order. civil penalty that may be imposed, be by whose action the death of another Under Secretary, Bureau of Industry fined under Title 18 of the United States person is the result shall be punished by and Security. The Under Secretary, Code, be imprisoned for not more than death or imprisoned for life. Bureau of Industry and Security, United one year, or both. (b) Civil penalty for development or States Department of Commerce. (d) Denial of export privileges. Any use of a chemical weapon. The Attorney person in the United States or any U.S. General may bring a civil action in the § 719.2 Violations of the Act subject to appropriate United States district court administrative and criminal enforcement national may be subject to a denial of proceedings. export privileges after notice and against any person who violates 18 U.S.C. 229 and, upon proof of such (a) Violations. (1) Refusal to permit opportunity for hearing pursuant to part violation by a preponderance of the entry or inspection. No person may 720 of the CWCR if that person has been evidence, such person shall be subject willfully fail or refuse to permit entry or convicted under Title 18, section 229 of to pay a civil penalty in an amount not inspection, or disrupt, delay or the United States Code. to exceed $100,000 for each such otherwise impede an inspection, § 719.3 Violations of the IEEPA subject to violation. authorized by the Act. judicial enforcement proceedings. (2) Failure to establish or maintain (c) Criminal forfeiture. (1) Any person (a) Violations. (1) Import restrictions convicted under section 229A(a) of Title records. No person may willfully fail or involving Schedule 1 chemicals. Except refuse: 18 of the United States Code shall forfeit as otherwise provided in § 712.2 of the to the United States irrespective of any (i) To establish or maintain any record CWCR, no person may import any required by the Act or this subchapter; provision of State law: Schedule 1 chemical (See Supplement (i) Any property, real or personal, or No. 1 to part 712 of the CWCR) unless: (ii) To submit any report, notice, or owned, possessed, or used by a person (i) The import is from a State Party; involved in the offense; other information to the United States (ii) The import is for research, (ii) Any property constituting, or Government in accordance with the Act medical, pharmaceutical, or protective derived from, and proceeds the person or the CWCR; or purposes; obtained, directly or indirectly, as the (iii) To permit access to or copying of (iii) The import is in types and result of such violation; and any record that is exempt from quantities strictly limited to those that disclosure under the Act or the CWCR. can be justified for such purposes; and (iii) Any of the property used in any (b) Civil penalties. (1) Civil penalty for (iv) The importing person has notified manner or part, to commit, or to refusal to permit entry or inspection. BIS not less than 45 calendar days facilitate the commission of, such Any person that is determined to have before the import pursuant to § 712.6 of violation. willfully failed or refused to permit the CWCR. (2) In lieu of a fine otherwise entry or inspection, or to have (2) Import restrictions involving authorized by section 229A(a) of Title disrupted, delayed or otherwise Schedule 2 chemicals. Except as 18 of the United States Code, a impeded an authorized inspection, as otherwise provided in § 713.1 of the defendant who derived profits or other set forth in paragraph (a)(1) of this CWCR, no person may, on or after April proceeds from an offense may be fined section, shall pay a civil penalty in an 29, 2000, import any Schedule 2 not more than twice the gross profits or amount not to exceed $25,000 for each chemical (see Supplement No. 1 to part other proceeds. violation. Each day the violation 713 of the CWCR) from any destination (d) Injunction. (1) The United States continues constitutes a separate other than a State Party. may, in a civil action, obtain an violation. (b) Civil penalty. A civil penalty not injunction against: (2) Civil penalty for failure to to exceed $11,000 may be imposed in establish or maintain records. Any accordance with this part on any person 2 Alternatively, sanctions may be imposed under person that is determined to have for each violation of this section.1 18 U.S.C. 3571, a criminal code provision that willfully failed or refused to establish or establishes a maximum criminal fine for a felony maintain any record or submit any that is the greatest of: (1) The amount provided by 1 The maximum civil penalty allowed under the the statute that was violated; (2) an amount not report, notice, or other information International Emergency Economic Powers Act is more than $250,000 for an individual, or not more required by the Act or the CWCR, or to $11,000 for any violation committed on or after than $500,000 for an organization; or (3) an amount permit access to or copying of any October 23, 1996 (15 CFR 6.4(a)(3)). based on gain or loss from the offense.

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(i) The conduct prohibited under on signature of the Secretary of State, the allegations set forth in the NOVA section 229 or 229C of Title 18 of the and provide payment instructions. A and proposed order. If no hearing is United States Code; or copy of the regulations that govern the requested and no answer is provided, (ii) The preparation or solicitation to administrative proceedings will the proposed order will be signed and engage in conduct prohibited under accompany the NOVA. become final and unappealable. section 229 or 229D of Title 18 of the (d) Proposed order. A proposed order United States Code. shall accompany every NOVA, letter of § 719.7 Representation. (2) In addition, the United States may, intent to charge, and draft NOVA. It will A respondent individual may appear in a civil action, restrain any violation briefly set forth the substance of the and participate in person, a corporation of section 306 or 405 of the Act, or alleged violation(s) and the statutory, by a duly authorized officer or compel the taking of any action required regulatory or other provisions violated. employee, and a partnership by a by or under the Act or the Convention. It will state the amount of the civil partner. If a respondent is represented penalty to be assessed. by counsel, counsel shall be a member § 719.5 Initiation of administrative (e) Notice. Notice of the intent to in good standing of the bar of any State, proceedings. charge or of the initiation of formal Commonwealth or Territory of the (a) Request for Notice of Violation and proceedings shall be given to the United States, or of the District of Assessment (NOVA). The Director of the respondent (or respondent’s agent for Columbia, or be licensed to practice law Office of Export Enforcement, Bureau of service of process, or attorney) by in the country in which counsel resides, Industry and Security, may request that sending relevant documents, via first if not the United States. The U.S. the Secretary of State initiate an class mail, facsimile, or by personal Government will be represented by the administrative enforcement proceeding delivery. Office of Chief Counsel. A respondent under this § 719.5 and 22 CFR 103.7. If personally, or through counsel or other the request is in accordance with § 719.6 Request for hearing and answer. representative who has the power of applicable law, the Secretary of State (a) Time to answer. If the respondent attorney to represent the respondent, will initiate an administrative wishes to contest the NOVA and shall file a notice of appearance with the enforcement proceeding by issuing a proposed order issued by the Secretary ALJ, or, in cases where settlement NOVA. The Office of Chief Counsel of State, the respondent must request a negotiations occur before any filing with shall serve the NOVA as directed by the hearing in writing within 15 business the ALJ, with the Office of Chief Secretary of State. days from the postmarked date of the Counsel. (b) Letter of intent to charge. The NOVA. If the respondent requests a Director of the Office of Export hearing, the respondent must answer § 719.8 Filing and service of papers other Enforcement, Bureau of Industry and the NOVA within 30 days from the date than the NOVA. Security, may notify a respondent by of the request for hearing. The request (a) Filing. All papers to be filed with letter of the intent to charge. This letter for hearing and answer must be filed the ALJ shall be addressed to ‘‘CWC of intent to charge will advise a with the Administrative Law Judge Administrative Enforcement respondent that BIS has conducted an (ALJ), along with a copy of the NOVA Proceedings’’ at the address set forth in investigation and intends to recommend and proposed order, and served on the the NOVA, or such other place as the that the Secretary of State issue a Office of Chief Counsel, and any other ALJ may designate. Filing by United NOVA. The letter of intent to charge address(es) specified in the NOVA, in States mail (first class postage prepaid), will be accompanied by a draft NOVA accordance with § 719.8. by express or equivalent parcel delivery and proposed order, and will give the (b) Content of answer. The service, via facsimile, or by hand respondent a specified period of time to respondent’s answer must be responsive delivery, is acceptable. Filing from a contact BIS to discuss settlement of the to the NOVA and proposed order, and foreign country shall be by airmail or allegations set forth in the draft NOVA. must fully set forth the nature of the via facsimile. A copy of each paper filed An administrative enforcement respondent’s defense(s). The answer shall be simultaneously served on all proceeding is not initiated by a letter of must specifically admit or deny each parties. intent to charge. If the respondent does separate allegation in the NOVA; if the (b) Service. Service shall be made by not contact BIS within the specified respondent is without knowledge, the United States mail (first class postage time, or if the respondent requests it, answer will so state and will operate as prepaid), by express or equivalent BIS will make its request for initiation a denial. Failure to deny or controvert parcel delivery service, via facsimile, or of an administrative enforcement a particular allegation will be deemed by hand delivery of one copy of each proceeding to the Secretary of State in an admission of that allegation. The paper to each party in the proceeding. accordance with paragraph (a) of this answer must also set forth any The Department of State is a party to section. additional or new matter the respondent cases under the CWCR, but will be (c) Content of NOVA. The NOVA contends supports a defense or claim of represented by the Office of Chief shall constitute a formal complaint, and mitigation. Any defense or partial Counsel. Therefore, service on the will set forth the basis for the issuance defense not specifically set forth in the government party in all proceedings of the proposed order. It will set forth answer shall be deemed waived, and shall be addressed to Office of Chief the alleged violation(s) and the essential evidence thereon may be refused, except Counsel for Industry and Security, U.S. facts with respect to the alleged for good cause shown. Department of Commerce, 14th Street violation(s), reference the relevant (c) English required. The request for and Constitution Avenue, NW., Room statutory, regulatory or other provisions, hearing, answer, and all other papers H–3839, Washington, DC 20230, or sent and state the amount of the civil penalty and documentary evidence must be via facsimile to (202) 482–0085. Service to be assessed. The NOVA will inform submitted in English. on a respondent shall be to the address the respondent of the right to request a (d) Waiver. The failure of the to which the NOVA and proposed order hearing pursuant to § 719.6, inform the respondent to file a request for a hearing was sent, or to such other address as the respondent that failure to request such and an answer within the times respondent may provide. When a party a hearing shall result in the proposed provided constitutes a waiver of the has appeared by counsel or other order becoming final and unappealable respondent’s right to appear and contest representative, service on counsel or

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other representative shall constitute (b) Interrogatories and requests for showing that there is substantial reason service on that party. admission or production of documents. to believe that the evidence would not (c) Date. The date of filing or service A party may serve on any party otherwise be available, the ALJ may is the day when the papers are interrogatories, requests for admission, issue subpoenas to any person requiring deposited in the mail or are delivered in or requests for production of documents the attendance and testimony of person, by delivery service, or by for inspection and copying, and a party witnesses and the production of such facsimile. Refusal by the person to be concerned may apply to the ALJ for books, records or other documentary or served, or by the person’s agent or such enforcement or protective order as physical evidence for the purpose of the attorney, of service of a document or that party deems warranted with respect hearing, as the ALJ deems relevant and other paper will be considered effective to such discovery. The service of a material to the proceedings, and service of the document or other paper discovery request shall be made at least reasonable in scope. Witnesses shall be as of the date of such refusal. 20 days before the scheduled date of the paid the same fees and mileage that are (d) Certificate of service. A certificate hearing unless the ALJ specifies a paid to witnesses in the courts of the of service signed by the party making shorter time period. Copies of United States. In case of contempt, service, stating the date and manner of interrogatories, requests for admission challenge or refusal to obey a subpoena service, shall accompany every paper, and requests for production of served upon any person pursuant to this other than the NOVA and proposed documents and responses thereto shall paragraph, any district court of the order, filed and served on the parties. be served on all parties and a copy of United States, in which venue is proper, (e) Computation of time. In computing the certificate of service shall be filed has jurisdiction to issue an order any period of time prescribed or with the ALJ. Matters of fact or law of requiring any such person to comply allowed by this part, the day of the act, which admission is requested shall be with such subpoena. Any failure to obey event, or default from which the deemed admitted unless, within a such order of the court is punishable by designated period of time begins to run period designated in the request (at least the court as a contempt thereof. is not to be included. The last day of the 10 days after service, or within such (b) Service. Subpoenas issued by the period so computed is to be included additional time as the ALJ may allow), ALJ may be served by any of the unless it is a Saturday, a Sunday, or a the party to whom the request is methods set forth in § 719.8(b). legal holiday (as defined in Rule 6(a) of directed serves upon the requesting (c) Timing. Applications for the Federal Rules of Civil Procedure), in party a sworn statement either denying subpoenas must be submitted at least 10 which case the period runs until the end specifically the matters of which days before the scheduled hearing or of the next day which is neither a admission is requested or setting forth deposition, unless the ALJ determines, Saturday, a Sunday, nor a legal holiday. in detail the reasons why the party to for good cause shown, that Intermediate Saturdays, Sundays, and whom the request is directed cannot extraordinary circumstances warrant a legal holidays are excluded from the truthfully either admit or deny such shorter time. computation when the period of time matters. § 719.12 Matters protected against prescribed or allowed is 7 days or less. (c) Depositions. Upon application of a party and for good cause shown, the ALJ disclosure. § 719.9 Summary decision. may order the taking of the testimony of (a) Protective measures. The ALJ may The ALJ may render a summary any person by deposition and the limit discovery or introduction of decision disposing of all or part of a production of specified documents or evidence or issue such protective or proceeding on the motion of any party materials by the person at the other orders as in the ALJ’s judgment to the proceeding, provided that there is deposition. The application shall state may be needed to prevent undue no genuine issue as to any material fact the purpose of the deposition and set disclosure of classified or sensitive and the party is entitled to summary forth the facts sought to be established documents or information, including decision as a matter of law. through the deposition. Confidential Business Information as (d) Enforcement. The ALJ may order defined by the Act. Where the ALJ § 719.10 Discovery. a party to answer designated questions, determines that documents containing (a) General. The parties are to produce specified documents or classified or sensitive matter must be encouraged to engage in voluntary things or to take any other action in made available to a party in order to discovery regarding any matter, not response to a proper discovery request. avoid prejudice, the ALJ may direct the privileged, which is relevant to the If a party does not comply with such an other party to prepare an unclassified subject matter of the pending order, the ALJ may make a and nonsensitive summary or extract of proceeding. The provisions of the determination or enter any order in the the documents. The ALJ may compare Federal Rules of Civil Procedure relating proceeding as the ALJ deems reasonable the extract or summary with the original to discovery apply to the extent and appropriate. The ALJ may strike to ensure that it is supported by the consistent with this part and except as related charges or defenses in whole or source document and that it omits only otherwise provided by the ALJ or by in part or may take particular facts so much as must remain undisclosed. waiver or agreement of the parties. The relating to the discovery request to The summary or extract may be ALJ may make any order which justice which the party failed or refused to admitted as evidence in the record. requires to protect a party or person respond as being established for (b) Arrangements for access. If the ALJ from annoyance, embarrassment, purposes of the proceeding in determines that the summary procedure oppression, or undue burden or accordance with the contentions of the outlined in paragraph (a) of this section expense. These orders may include party seeking discovery. In addition, is unsatisfactory, and that classified or limitations on the scope, method, time enforcement by any district court of the otherwise sensitive matter must form and place of discovery, and provisions United States in which venue is proper part of the record in order to avoid for protecting the confidentiality of may be sought as appropriate. prejudice to a party, the ALJ may classified or otherwise sensitive provide the parties opportunity to make information, including Confidential § 719.11 Subpoenas. arrangements that permit a party or a Business Information (CBI) as defined (a) Issuance. Upon the application of representative to have access to such by the Act. any party, supported by a satisfactory matter without compromising sensitive

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information. Such arrangements may and filed with the ALJ. If any party violation has occurred with respect to include obtaining security clearances or wishes to obtain a written copy of the one or more allegations, the ALJ shall giving counsel for a party access to transcript, that party shall pay the costs order dismissal of the allegation(s) in sensitive information and documents of transcription. The parties may share whole or in part, as appropriate. If the subject to assurances against further the costs if both wish a transcript. ALJ finds that one or more violations disclosure, including a protective order, (2) Upon such terms as the ALJ deems have been committed, the ALJ shall if necessary. just, the ALJ may direct that the issue an order imposing administrative testimony of any person be taken by sanctions. § 719.13 Prehearing conference. deposition and may admit an affidavit (b) Factors considered in assessing (a) On the ALJ’s own motion, or on or declaration as evidence, provided penalties. In determining the amount of request of a party, the ALJ may direct that any affidavits or declarations have a civil penalty, the ALJ shall take into the parties to participate in a prehearing been filed and served on the parties account the nature, circumstances, conference, either in person or by sufficiently in advance of the hearing to extent and gravity of the violation(s), telephone, to consider: permit a party to file and serve an and, with respect to the respondent, the (1) Simplification of issues; objection thereto on the grounds that it respondent’s ability to pay the penalty, (2) The necessity or desirability of is necessary that the affiant or declarant the effect of a civil penalty on the amendments to pleadings; testify at the hearing and be subject to respondent’s ability to continue to do (3) Obtaining stipulations of fact and cross-examination. business, the respondent’s history of of documents to avoid unnecessary (d) Failure to appear. If a party fails prior violations, the respondent’s degree proof; or to appear in person or by counsel at a of culpability, the existence of an (4) Such other matters as may scheduled hearing, the hearing may internal compliance program, and such expedite the disposition of the nevertheless proceed. The party’s failure other matters as justice may require. proceedings. to appear will not affect the validity of (c) Certification of initial decision. (b) The ALJ may order the conference the hearing or any proceeding or action The ALJ shall immediately certify the proceedings to be recorded taken thereafter. initial decision and order to the electronically or taken by a reporter, Executive Director of the Office of Legal transcribed and filed with the ALJ. § 719.15 Procedural stipulations. Adviser, U.S. Department of State, 2201 (c) If a prehearing conference is Unless otherwise ordered and subject C Street, NW., Room 5519, Washington, impracticable, the ALJ may direct the to § 719.16, a written stipulation agreed DC 20520, to the Office of Chief Counsel parties to correspond with the ALJ to to by all parties and filed with the ALJ at the address in § 719.8, and to the achieve the purposes of such a will modify the procedures established respondent, by personal delivery or conference. by this part. overnight mail. (d) The ALJ will prepare a summary (d) Review of initial decision. The of any actions agreed on or taken § 719.16 Extension of time. initial decision shall become the final pursuant to this section. The summary The parties may extend any agency decision and order unless, will include any written stipulations or applicable time limitation by stipulation within 30 days, the Secretary of State agreements made by the parties. filed with the ALJ before the time modifies or vacates it, with or without limitation expires, or the ALJ may, on conditions, in accordance with 22 CFR § 719.14 Hearings. the ALJ’s own initiative or upon 103.8. (a) Scheduling. Upon receipt of a application by any party, either before § 719.19 Settlement. written and dated request for a hearing, or after the expiration of any applicable the ALJ shall, by agreement with all the time limitation, extend the time, except (a) Settlements before issuance of a parties or upon notice to all parties of that the requirement that a hearing be NOVA. When the parties have agreed to at least 30 days, schedule a hearing. All demanded within 15 days, and the a settlement of the case, the Director of hearings will be held in Washington, requirement that a final agency decision the Office of Export Enforcement will D.C., unless the ALJ determines, for be made within 30 days, may not be recommend the settlement to the good cause shown, that another location modified. Secretary of State, forwarding a would better serve the interest of justice. proposed settlement agreement and (b) Hearing procedure. Hearings will § 719.17 Post-hearing submissions. order, which, in accordance with 22 be conducted in a fair and impartial All parties shall have the opportunity CFR 103.9(a), the Secretary of State will manner by the ALJ. All hearings will be to file post-hearing submissions that approve and sign if the recommended closed, unless the ALJ for good cause may include findings of fact and settlement is in accordance with shown determines otherwise. The rules conclusions of law, supporting evidence applicable law. of evidence prevailing in courts of law and legal arguments, exceptions to the (b) Settlements following issuance of do not apply, and all evidentiary ALJ’s rulings or to the admissibility of a NOVA. The parties may enter into material deemed by the ALJ to be evidence, and proposed orders and settlement negotiations at any time relevant and material to the proceeding settlements. during the time a case is pending before and not unduly repetitious will be the ALJ. If necessary, the parties may received and given appropriate weight, § 719.18 Decisions. extend applicable time limitations or except that any evidence of settlement (a) Initial decision. After considering otherwise request that the ALJ stay the which would be excluded under Rule the entire record in the case, the ALJ proceedings while settlement 408 of the Federal Rules of Evidence is will issue an initial decision based on negotiations continue. When the parties not admissible. Witnesses will testify a preponderance of the evidence. The have agreed to a settlement of the case, under oath or affirmation, and shall be decision will include findings of fact, the Office of Chief Counsel will subject to cross-examination. conclusions of law, and a decision recommend the settlement to the (c) Testimony and record. (1) A based thereon as to whether the Secretary of State, forwarding a verbatim record of the hearing and of respondent has violated the Act. If the proposed settlement agreement and any other oral proceedings will be taken ALJ finds that the evidence of record is order, which, in accordance with 22 by reporter or by electronic recording, insufficient to sustain a finding that a CFR 103.9(b), the Secretary will approve

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and sign if the recommended settlement for decision, as defined in paragraphs or threatening to use, a chemical is in accordance with applicable law. (a) and (b) of this section will be made weapon; or (c) Settlement scope. Any respondent available on request. (b) Assisting or inducing, in any way, who agrees to an order imposing any (2) Timing. The record for decision any person to violate paragraph (a) of administrative sanction does so solely will be available only after the final this section, or attempting or conspiring for the purpose of resolving the claims administrative disposition of a case. to violate paragraph (a) of this section. in the administrative enforcement Parties may seek to restrict access to any proceeding brought under this part. This portion of the record under paragraph § 720.2 Initiation of administrative action reflects the fact that the government (b) of this section. denying export privileges. officials involved have neither the (a) Notice. BIS will notify any person authority nor the responsibility for § 719.21 Payment of final assessment. convicted of Section 229, Title 18, initiating, conducting, settling, or (a) Time for payment. Full payment of United States Code, of BIS’s intent to otherwise disposing of criminal the civil penalty must be made within deny that person’s export privileges. proceedings. That authority and 30 days of the effective date of the order The notification letter shall reference responsibility are vested in the Attorney or within such longer period of time as the person’s conviction, specify the General and the Department of Justice. may be specified in the order. Payment number of years for which BIS intends (d) Finality. Cases that are settled may shall be made in the manner specified to deny export privileges, set forth the not be reopened or appealed. in the NOVA. statutory and regulatory authority for (b) Enforcement of order. The the action, state whether the denial § 719.20 Record for decision. government party may, through the order will be standard or non-standard (a) The record. The transcript of Attorney General, file suit in an pursuant to Supplement No. 1 to part hearings, exhibits, rulings, orders, all appropriate district court if necessary to 764 of the Export Administration papers and requests filed in the enforce compliance with a final order Regulations (15 CFR parts 730 through proceedings, and, for purposes of any issued under the CWCR. This suit will 799), and provide that the person may appeal under § 719.18 or under 22 CFR include a claim for interest at current request a hearing before the 103.8, the decision of the ALJ and such prevailing rates from the date payment Administrative Law Judge within 30 submissions as are provided for under was due or ordered. days from the date of the notification § 719.18 or 22 CFR 103.8 will constitute (c) Offsets. The amount of any civil letter. the record and the exclusive basis for penalty imposed by a final order may be (b) Waiver. The failure of the notified decision. When a case is settled, the deducted from any sum(s) owed by the person to file a request for a hearing record will consist of any and all of the United States to a respondent. within the time provided constitutes a foregoing, as well as the NOVA or draft § 719.22 Reporting a violation. waiver of the person’s right to contest NOVA, settlement agreement, and order. the denial of export privileges that BIS If a person learns that a violation of (b) Restricted access. On the ALJ’s intends to impose. own motion, or on the motion of any the Convention, the Act, or the CWCR (c) Order of Assistant Secretary. If no party, the ALJ may direct that there be has occurred or may occur, that person hearing is requested, the Assistant a restricted access portion of the record may notify: Office of Export Secretary for Export Enforcement will for any material in the record to which Enforcement, Bureau of Industry and order that export privileges be denied as public access is restricted by law or by Security, U.S. Department of Commerce, indicated in the notification letter. the terms of a protective order entered 14th Street and Constitution Avenue, in the proceedings. A party seeking to NW., Room H–4520, Washington, DC § 720.3 Final decision on administrative restrict access to any portion of the 20230; Tel: (202) 482–1208; Facsimile: action denying export privileges. record is responsible, prior to the close (202) 482–0964. (a) Hearing. Any hearing that is of the proceeding, for submitting a granted by the ALJ shall be conducted version of the document(s) proposed for PART 720—DENIAL OF EXPORT in accordance with the procedures set public availability that reflects the PRIVILEGES forth in § 719.14 of the CWCR. requested deletion. The restricted access Sec. (b) Initial decision and order. After portion of the record will be placed in 720.1 Denial of export privileges for considering the entire record in the a separate file and the file will be clearly convictions under 18 U.S.C. 229. proceeding, the ALJ will issue an initial marked to avoid improper disclosure 720.2 Initiation of administrative action decision and order, based on a and to identify it as a portion of the denying export privileges. preponderance of the evidence. The ALJ official record in the proceedings. The 720.3 Final decision on administrative may consider factors such as the action denying export privileges. seriousness of the criminal offense that ALJ may act at any time to permit 720.4 Effect of denial. material that becomes declassified or is the basis for conviction, the nature unrestricted through passage of time to Authority: 22 U.S.C. 6701 et seq.; E.O. and duration of the criminal sanctions 13128, 64 FR 36703, 3 CFR, 1999 Comp., p. imposed, and whether the person has be transferred to the unrestricted access 199. portion of the record. undertaken any corrective measures. (c) Availability of documents. (1) § 720.1 Denial of export privileges for The ALJ may dismiss the proceeding if Scope. All NOVAs and draft NOVAs, convictions under 18 U.S.C. 229. the evidence is insufficient to sustain a answers, settlement agreements, Any person in the United States or denial of export privileges, or may issue decisions and orders disposing of a case any U.S. national may be denied export an order imposing a denial of export will be displayed on the BIS Freedom of privileges after notice and opportunity privileges for the length of time the ALJ Information Act (FOIA) Web site, at for hearing if that person has been deems appropriate. An order denying http://www.bis.doc.gov/foia, which is convicted under Title 18, Section 229 of export privileges may be standard or maintained by the Office of the United States Code of knowingly: non-standard, as provided in Administration, Bureau of Industry and (a) Developing, producing, otherwise Supplement No. 1 to part 764 of the Security, U.S. Department of Commerce. acquiring, transferring directly or Export Administration Regulations (15 This office does not maintain a separate indirectly, receiving, stockpiling, CFR parts 730 through 799). The initial inspection facility. The complete record retaining, owning, possessing, or using, decision and order will be served on

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each party, and will be published in the 799). The name and address of the agent, official or employee of the U.S. Federal Register as the final decision of denied person will be published on the Government under § 721.1. BIS 30 days after service, unless an Denied Persons List found in (d) Reproduction of original records. appeal is filed in accordance with Supplement 2 to part 764 of the Export (1) You may maintain reproductions paragraph (c) of this section. Administration Regulations (15 CFR instead of the original records provided (c) Grounds for appeal. (1) A party parts 730 through 799). all of the requirements of paragraph (b) may, within 30 days of the ALJ’s initial of this section are met. decision and order, petition the Under PART 721—INSPECTION OF (2) If you must maintain records Secretary, Bureau of Industry and RECORDS AND RECORDKEEPING under this part, you may use any Security, for review of the initial Sec. photostatic, miniature photographic, decision and order. A petition for 721.1 Inspection of records. micrographic, automated archival review must be filed with the Office of 721.2 Recordkeeping. storage, or other process that Under Secretary, Bureau of Industry and 721.3 Destruction or disposal of records. completely, accurately, legibly and Security, Department of Commerce, Authority: 22 U.S.C. 6701 et seq.; E.O. durably reproduces the original records 14th Street and Constitution Avenue, 13128, 64 FR 36703, 3 CFR, 1999 Comp., p. (whether on paper, microfilm, or NW., Washington, DC 20230, and shall 199. through electronic digital storage be served on the Office of Chief Counsel techniques). The process must meet all § 721.1 Inspection of records. for Industry and Security or on the of the following requirements, which respondent. Petitions for review may be Upon request by BIS or any other are applicable to all systems: filed only on one or more of the agency of competent jurisdiction, you (i) The system must be capable of following grounds: must permit access to and copying of reproducing all records on paper. (i) That a necessary finding of fact is any record relating to compliance with (ii) The system must record and be omitted, erroneous or unsupported by the requirements of the CWCR. This able to reproduce all marks, substantial evidence of record; requires that you make available the information, and other characteristics of (ii) That a necessary legal conclusion equipment and, if necessary, the original record, including both or finding is contrary to law; knowledgeable personnel for locating, obverse and reverse sides (unless blank) (iii) That prejudicial procedural error reading, and reproducing any record. of paper documents in legible form. occurred; or (iii) When displayed on a viewer, (iv) That the decision or the extent of § 721.2 Recordkeeping. monitor, or reproduced on paper, the sanctions is arbitrary, capricious or an (a) Requirements. Each person, records must exhibit a high degree of abuse of discretion. facility, plant site or trading company legibility and readability. For purposes (2) The appeal must specify the required to submit a declaration, report, of this section, legible and legibility grounds on which the appeal is based or advance notification under parts 712 mean the quality of a letter or numeral and the provisions of the order from through 715 of the CWCR must retain all that enable the observer to identify it which the appeal was taken. supporting materials and (d) Appeal procedure. The Under documentation used by a unit, plant, positively and quickly to the exclusion Secretary, Bureau of Industry and facility, plant site or trading company to of all other letters or numerals. Readable Security, normally will not hold prepare such declaration, report, or and readability mean the quality of a hearings or entertain oral arguments on advance notification to determine group of letters or numerals being appeals. A full written statement in production processing, consumption, recognized as complete words or support of the appeal must be filed with export or import of chemicals. numbers. the appeal and be simultaneously (b) Five year retention period. All (iv) The system must preserve the served on all parties, who shall have 30 supporting materials and initial image (including both obverse days from service to file a reply. At his/ documentation required to be kept and reverse sides, unless blank, of paper her discretion, the Under Secretary may under paragraph (a) of this section must documents) and record all changes, who accept new submissions, but will not be retained for five years from the due made them and when they were made. ordinarily accept those submissions date of the applicable declaration, This information must be stored in such filed more than 30 days after the filing report, or advance notification, or for a manner that none of it may be altered of the reply to the appellant’s first five years from the date of submission once it is initially recorded. submission. of the applicable declaration, report or (v) You must establish written (e) Decisions. The Under Secretary’s advance notification, whichever is later. procedures to identify the individuals decision will be in writing and will be Due dates for declarations, reports and who are responsible for the operation, accompanied by an order signed by the advance notifications are provided in use and maintenance of the system. Under Secretary, Bureau of Industry and parts 712 through 715 of the CWCR. (vi) You must keep a record of where, Security, giving effect to the decision. (c) Location of records. If a facility is when, by whom, and on what The order may either dispose of the case subject to inspection under part 716 of equipment the records and other by affirming, modifying or reversing the the CWCR, records retained under this information were entered into the order of the ALJ, or may refer the case section must be maintained at the system. back to the ALJ for further proceedings. facility or must be accessible (3) Requirements applicable to a Any order that imposes a denial of electronically at the facility for purposes system based on digital images. For export privileges will be published in of inspection of the facility by systems based on the storage of digital the Federal Register. Inspection Teams. If a facility is not images, the system must provide subject to inspection under part 716 of accessibility to any digital image in the § 720.4 Effect of denial. the CWCR, records retained under this system. The system must be able to Any person denied export privileges section may be maintained either at the locate and reproduce all records pursuant to this part shall be considered facility subject to a declaration, report, according to the same criteria that a ‘‘person denied export privileges’’ for or advance notification requirement, or would have been used to organize the purposes of the Export Administration at a remote location, but all records records had they been maintained in Regulations (15 CFR parts 730 through must be accessible to any authorized original form.

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(4) Requirements applicable to a § 721.3 Destruction or disposal of records. also for applicability of decisions by the system based on photographic If BIS or other authorized U.S. Organization for the Prohibition of Chemical processes. For systems based on government agency makes a formal or Weapons (OPCW). photographic, photostatic, or miniature informal request for a certain record or photographic processes, the records records, such record or records may not PARTS 723–729—[RESERVED] must be maintained according to an be destroyed or disposed of without the index of all records in the system written authorization of the requesting Dated: November 26, 2004. entity. following the same criteria that would Matthew S. Borman, have been used to organize the records PART 722—INTERPRETATIONS Deputy Assistant Secretary for Export had they been maintained in original [RESERVED] Administration. form. [FR Doc. 04–26517 Filed 12–6–04; 8:45 am] Note: This part is reserved for BILLING CODE 3510–33–P interpretations of parts 710 through 721 and

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Part III

State Justice Institute Grant Guideline; Notice

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STATE JUSTICE INSTITUTE Judicial Branch Education Technical 2005 will be notified by June 10, 2005; Assistance (JBE TA) grants, and those submitting letters between Grant Guideline Scholarships. As noted above, to the February 26 and June 3, 2005 will be extent sufficient additional funding notified by August 19, 2005; and those AGENCY: State Justice Institute. becomes available, the Institute may submitting letters between June 4 and ACTION: Final grant Guideline. also offer selected applicants the September 23, 2005 will be notified of SUMMARY: This Guideline sets forth the opportunity to apply for new Project the Board’s decision by December 2, administrative, programmatic, and Grants. 2005. See section VI.C. for JBE TA Grant financial requirements attendant to Continuation Grants. Continuation application procedures. Fiscal Year 2005 State Justice Institute Grants (see sections II.A., III.D., V.B.1., Scholarships. Section II.D. of the grants, cooperative agreements, and and VI.A.) are intended to enhance the Guideline allocates up to $200,000 of contracts. specific program or service begun FY 2005 funds for scholarships to during an earlier Project Grant period. enable judges and court managers to DATES: December 7, 2004. An applicant for a Continuation Grant attend out-of-State education and FOR FURTHER INFORMATION CONTACT: must submit a letter notifying the training programs. A scholarship of up Kathy Schwartz, Acting Executive Institute of its intent to seek such to $1,500 may be awarded to pay for a Director, State Justice Institute, 1650 funding no later than 120 days before recipient’s tuition, travel, and lodging King St. (Suite 600), Alexandria, VA the end of the current grant period. The costs. 22314, (703) 684–6100. Institute will then notify the applicant Scholarships for eligible applicants SUPPLEMENTARY INFORMATION: Pursuant of the deadline for its Continuation are approved largely on a ‘‘first come, to the State Justice Institute Act of 1984, Grant application. first served’’ basis, although the Institute 42 U.S.C. 10701, et seq., as amended, Technical Assistance Grants. Section may approve or disapprove scholarship the Institute is authorized to award II.B. reserves up to $300,000 for requests in order to achieve appropriate grants, cooperative agreements, and Technical Assistance Grants. Under this balances on the basis of geography, contracts to State and local courts, program, a State or local court or court program provider, and type of court or nonprofit organizations, and others for association may receive a grant of up to applicant (e.g., trial judge, appellate the purpose of improving the quality of $30,000 to engage outside experts to judge, trial court administrator). justice in the State courts of the United provide technical assistance to Scholarships will be approved only for States. diagnose, develop, and implement a programs that either (1) enhance the Through the Consolidated response to a jurisdiction’s problems. skills of judges and court managers; or Appropriations Act of 2005 (H.R. 4818), Court associations’ eligibility for TA (2) are part of a graduate degree program Congress appropriated $2.613 million grants is new this fiscal year. for judges or court personnel. for SJI. An Interagency Agreement (IAA) Letters of application for a Technical Beginning in FY 2005, recipients are with the Department of Justice’s Office Assistance Grant may be submitted at limited to no more than one scholarship on Violence Against Women will any time. Applicants submitting letters in a three-year period, absent provide up to $420,000 to support by January 7, 2005 will be notified by programmatic reasons that would projects aimed at educating judges about April 8, 2005; those submitting letters require attendance at a series of courses rape and sexual assault. Other sources between January 8 and February 25, held on a more frequent schedule. of funds available to SJI in FY 2005 are 2005 will be notified by June 10, 2005; Applicants interested in obtaining a expected to include an IAA with the those submitting letters between scholarship for a program beginning Department of Justice’s Bureau of Justice February 26 and June 3, 2005 will be between April 1 and June 30, 2005, Assistance, under which up to $320,000 notified by August 19, 2005; and those must submit their applications and may be transferred to SJI to support submitting letters between June 4 and documents between January 3 and specific projects; and amounts September 23, 2005 will be notified of February 28, 2005. For programs deobligated from expired grants, which the Board’s decision by December 2, beginning between July 1 and are not expected to exceed $100,000. 2005. See section VI.B. for Technical September 30, 2005, the applications The Institute’s Board of Directors is Assistance Grant application and documents must be submitted dedicating the funds available for procedures. between April 1 and May 27, 2005. For Project Grants this fiscal year to Judicial Branch Education Technical programs beginning between October 1 continuing the most important Project Assistance Grants. Section II.C. of the and December 31, 2005, the applications Grants currently assisting courts Guideline allocates up to $100,000 for and documents must be submitted nationwide. To the extent that grants under the JBE TA grant program between July 5 and August 29, 2005. For additional funding becomes available this year. Grants of up to $20,000 are programs beginning between January 1 over the course of the fiscal year, the available to: (1) Enable a State or local and March 31, 2006, the applications Board of Directors may identify other court to adapt and deliver an education and documents must be submitted projects of interest and invite selected program that was previously developed between October 3 and November 28, applicants to apply for grants to carry and evaluated under an SJI project grant 2005. See section VI.D. for scholarship them out. If additional funding does not (i.e., curriculum adaptation); and/or (2) application procedures. become available, SJI will not award any support expert consultation in planning, Project Grants. If additional funds new Project Grants in FY 2005 other developing, and administering State become available in FY 2005, the than those that may be awarded within judicial branch education programs. Institute may invite applications for the scope of the Interagency Agreements Letters requesting JBE TA Grants may Project Grants to support innovative noted above. be submitted at any time. The grant education, research, demonstration, and cycles for JBE TA Grants are the same technical assistance projects that can Types of Grants Available and Funding as the grant cycles for TA Grants: improve the administration of justice in Schedules Applicants submitting letters by State courts nationwide. SJI may also SJI is offering four types of grants in January 7, 2005 will be notified by April invite applications for ‘‘think piece’’ FY 2005: Continuation Grants, 8, 2005; those submitting letters Project Grants to support the Technical Assistance (TA) Grants, between January 8 and February 25, development of essays of publishable

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quality that explore emerging issues that through national and State merit to courts nationwide. These could result in significant changes in organizations, including universities. projects must have: court processes or judicial To accomplish these broad objectives, 1. Developed products, services, and administration. ‘‘Think pieces’’ are the Institute is authorized to provide techniques that may be used in States limited to no more than $10,000. SJI funds to State courts, national across the country; and will inform potential applicants of the organizations which support and are 2. Created and disseminated products application requirements for these supported by State courts, national that effectively transfer the information grants in their invitation letters. judicial education organizations, and and ideas developed to relevant other organizations that can assist in audiences in State and local judicial Matching Requirements improving the quality of justice in the systems, or provide technical assistance With the exception of JBE TA State courts. to facilitate the adaptation of effective grantees, other grantees that can The Institute is supervised by a Board programs and procedures in other State demonstrate a financial hardship, and of Directors appointed by the President, and local jurisdictions. scholarship recipients, all grantees must with the consent of the Senate. The The application procedures for provide match, including cash match, Board is statutorily composed of six Continuation Grants may be found in for any Institute grant. The matching judges; a State court administrator; and section VI.A. requirements are summarized in four members of the public, no more B. Technical Assistance Grants sections III.L. and VIII.A.8. of the than two of whom can be of the same The Board is reserving up to $300,000 Guideline. political party. to support the provision of technical The following Grant Guideline is Through the award of grants, assistance to State and local courts and adopted by the State Justice Institute for contracts, and cooperative agreements, court associations. The program is FY 2005: the Institute is authorized to perform the designed to provide State and local following activities: Table of Contents courts with sufficient support to obtain A. Support research, demonstrations, I. The Mission of the State Justice Institute technical assistance to diagnose a special projects, technical assistance, II. Scope of the Program problem, develop a response to that and training to improve the III. Definitions problem, and implement any needed administration of justice in the State IV. Eligibility for Award changes. The Institute will reserve V. Types of Projects and Grants; Size of courts; Awards sufficient funds each quarter to assure B. Provide for the preparation, the availability of Technical Assistance VI. Applications publication, and dissemination of VII. Application Review Procedures Grants throughout the year. information regarding State judicial Technical Assistance Grants are VIII. Compliance Requirements systems; IX. Financial Requirements limited to no more than $30,000 each, X. Grant Adjustments C. Participate in joint projects with and may cover the cost of obtaining the Appendix A—SJI Libraries: Designated Sites Federal agencies and other private services of expert consultants; travel by and Contacts grantors; a team of officials from one court to Appendix B—Illustrative List of Technical D. Evaluate or provide for the examine a practice, program, or facility Assistance Grants evaluation of programs and projects in another jurisdiction that the Appendix C—Illustrative List of Model funded by the Institute to determine Curricula applicant court is interested in their impact upon the quality of replicating; or both. Normally, the Appendix D—Grant Application Forms criminal, civil, and juvenile justice and (Forms A, B, C, C1, D, and Disclosure of technical assistance must be completed Lobbying Activities) the extent to which they have within 12 months after the start date of Appendix E—Line-Item Budget Form (Form contributed to improving the quality of the grant. E) justice in the State courts; Only a State or local court or court Appendix F—Scholarship Application Forms E. Encourage and assist in furthering association may apply for a Technical (Forms S1 and S2) judicial education; Assistance grant. The application I. The Mission of the State Justice F. Encourage, assist, and serve in a procedures may be found in section Institute consulting capacity to State and local VI.B. justice system agencies in the The Institute was established by Pub. development, maintenance, and C. Judicial Branch Education Technical L. 98–620 to improve the administration coordination of criminal, civil, and Assistance Projects of justice in the State courts of the juvenile justice programs and services; The Board is reserving up to $100,000 United States. Incorporated in the State and to support technical assistance and on- of Virginia as a private, nonprofit G. Be responsible for the certification site consultation in planning, corporation, the Institute is charged, by of national programs that are intended developing, and administering statute, with the responsibility to: to aid and improve State judicial comprehensive and specialized State • Direct a national program of systems. judicial branch education programs, as financial assistance designed to assure well as the adaptation of model II. Scope of the Program that each citizen of the United States is curricula previously developed with SJI provided ready access to a fair and As set forth in Section I., the Institute funds. Judicial Branch Education effective system of justice; is authorized to fund projects Technical Assistance Grants are limited • Foster coordination and addressing a broad range of program to no more than $20,000 each. cooperation with the Federal judiciary; areas. However, during FY 2005, the The goals of the Judicial Branch • Promote recognition of the Institute will consider funding only the Education Technical Assistance importance of the separation of powers following: Program (JBE TA) in FY 2005 are to: doctrine to an independent judiciary; 1. Provide State and local courts and and A. Continuation Grants court associations with the opportunity • Encourage education for judges and This category includes critical SJI- to access expert strategic assistance to support personnel of State court systems supported Project Grants of proven enable them to maintain judicial branch

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education programming during the Certificate of State Approval (for specifies that the points of view current budget crisis; and applications from local trial or appellate expressed in the document or tape do 2. Enable courts and court courts or agencies); Form C—Project not necessarily represent the official associations to modify a model Budget/Tabular Format or Form C1— position or policies of the Institute. See curriculum, course module, or Project Budget/Spreadsheet Format; section VIII.A.11.a.(2) for the precise conference program developed with SJI Form D—Assurances; Disclosure of wording of this statement. funds to meet a particular State’s or Lobbying Activities; a detailed H. Grant Adjustment local jurisdiction’s educational needs; description, not to exceed 25 pages, of train instructors to present portions or the need for the project and all related A change in the design or scope of a all of the curriculum; and pilot-test it to tasks, including the time frame for project from that described in determine its appropriateness, quality, completion of each task, and staffing theapproved application, acknowledged and effectiveness. An illustrative but requirements; and a detailed budget in writing by the Institute. See section non-inclusive list of the curricula that narrative that provides the basis for all X.A for a list of the types of changes may be appropriate for adaptation is costs. See section VI. for a complete requiring a formal grant adjustment. contained in Appendix C. description of application submission Ordinarily, changes requiring a Grant Only State or local courts or court requirements. See Appendix D for the Adjustment (including budget associations may apply for JBE TA application forms. reallocations between direct cost funding. Application procedures may be categories that individually or found in Section VI.C. Applicants are C. Close-Out cumulatively exceed five percent of the not required to contribute cash match to The process by which the Institute approved original budget) should be JBE TA grants. determines that all applicable requested at least 30 days in advance of administrative and financial actions and the implementation of the requested D. Scholarships for Judges and Court all required grant work have been change. Managers completed by both the grantee and the I. Grantee The Institute is reserving up to Institute. $200,000 to support a scholarship The organization, entity, or individual program for State judges and court D. Continuation Grant to which an award of Institute funds is managers. The purposes of the A grant lasting no longer than 15 made. For a grant based on an scholarship program are to: months to permit completion of application from a State or local court, 1. Enhance the skills, knowledge, and activities initiated under an existing grantee refers to the State Supreme abilities of judges and court managers; Institute grant or enhancement of the Court or its designee. 2. Enable State court judges and court products or services produced during J. Human Subjects managers to attend out-of-State the prior grant period. See section VI.A. educational programs sponsored by for a complete description of Individuals who are participants in an national and State providers that they Continuation Grant application experimental procedure or who are could not otherwise attend because of requirements. asked to provide information about limited State, local, and personal themselves, their attitudes, feelings, E. Curriculum budgets; and opinions, and/or experiences through an 3. Provide States, judicial educators, The materials needed to replicate an interview, questionnaire, or other data and the Institute with evaluative education or training program collection technique. developed with grant funds including, information on a range of judicial and K. Judicial Branch Education Technical but not limited to: The learning court-related education programs. Assistance (JBE TA) Grant Scholarships will be granted to objectives; the presentation methods; a individuals only for the purpose of sample agenda or schedule; an outline A grant of up to $20,000 awarded to attending an out-of-State educational of presentations and relevant a State or local court or court program within the United States. instructors’ notes; copies of overhead association to support expert assistance Application procedures may be found in transparencies or other visual aids; in designing or delivering judicial Section VI.D. exercises, case studies, hypotheticals, branch education programming, and/or quizzes, and other materials for the adaptation of an education program III. Definitions involving the participants; background based on an SJI-supported curriculum The following definitions apply for materials for participants; evaluation that was previously developed and the purposes of this Guideline: forms; and suggestions for replicating evaluated under an SJI Project Grant. the program, including possible faculty See section VI.C. for a complete A. Acknowledgment of SJI Support or the preferred qualifications or description of JBE TA Grant application The prominent display of the SJI logo experience of those selected as faculty. requirements. on the front cover of a written product L. Match or in the opening frames of a videotape F. Designated Agency or Council developed with Institute support, and The office or judicial body which is The portion of project costs not borne inclusion of a brief statement on the authorized under State law or by by the Institute. Match includes both in- inside front cover or title page of the delegation from the State Supreme kind and cash contributions. Cash document or the opening frames of the Court to approve applications for SJI match is the direct outlay of funds by videotape identifying the grant number. grant funds and to receive, administer, the grantee to support the project. See section VIII.A.11.a.(2) for the and be accountable for those funds. Examples of cash match are the precise wording of the statement. dedication of funds to support a new G. Disclaimer employee or purchase new equipment B. Application A brief statement that must be to carry out the project; that portion of A formal request for an Institute grant. included at the beginning of a document the grantee’s federally approved indirect A complete application consists of: or in the opening frames of a videotape cost rate that exceeds the Guideline’s Form A—Application; Form B— produced with Institute support that limit of permitted charges (75% of

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salaries and benefits); any other complete description of scholarship considered a national education and reduction in the indirect cost rate to be application requirements. training applicant under section charged to the grant; and the application 10705(b)(1)(C) if: Q. Special Condition of project income (e.g., tuition or the 1. The principal purpose or activity of proceeds of sales of grant products) A requirement attached to a grant the applicant is to provide education generated during the grant period to award that is unique to a particular and training to State and local judges grant costs. project. and court personnel; and In-kind match consists of R. State Supreme Court 2. the applicant demonstrates a record contributions of time and/or services of of substantial experience in the field of current staff members, space, supplies, The highest appellate court in a State, judicial education and training. etc., made to the project by the grantee or, for the purposes of the Institute D. Other eligible grant recipients (42 or others (e.g., advisory board members) program, a constitutionally or U.S.C. 10705 (b)(2)(A)–(D)). working directly on the project. legislatively established judicial council 1. Provided that the objectives of the Under normal circumstances, that acts in place of that court. In States project can be served better, the Institute allowable match may be incurred only having more than one court with final is also authorized to make awards to: during the project period. When appellate authority, State Supreme a. Nonprofit organizations with appropriate, and with the prior written Court means that court which also has expertise in judicial administration; permission of the Institute, match may administrative responsibility for the b. institutions of higher education; be incurred from the date of the Board State’s judicial system. State Supreme c. individuals, partnerships, firms, of Directors’ approval of an award. Court also includes the office of the corporations (for-profit organizations Match does not include the time of court or council, if any, it designates to must waive their fees); and participants attending an education perform the functions described in this d. private agencies with expertise in program. Guideline. judicial administration. See section VIII.A.8. for the Institute’s S. Subgrantee 2. The Institute may also make awards matching requirements. to State or local agencies and A State or local court which receives M. Products institutions other than courts for Institute funds through the State services that cannot be adequately Tangible materials resulting from Supreme Court. provided through nongovernmental funded projects including, but not T. Technical Assistance Grant arrangements (42 U.S.C. 10705(b)(3)). limited to: Curricula; monographs; E. Inter-agency Agreements. The A grant, lasting up to 12 months, of reports; books; articles; manuals; Institute may enter into inter-agency up to $30,000 to a State or local court handbooks; benchbooks; guidelines; agreements with Federal agencies (42 or court association to support outside videotapes; audiotapes; computer U.S.C. 10705(b)(4)) and private funders expert assistance in diagnosing a software; and CD–ROM disks. to support projects consistent with the problem and developing and purposes of the State Justice Institute N. Project Grant implementing a response to that Act. An initial grant lasting up to 15 problem. See section VI.B. for a months to support an innovative complete description of Technical V. Types of Projects and Grants; Size of education, research, demonstration, or Assistance Grant application Awards requirements. technical assistance project that can A. Types of Projects improve the administration of justice in IV. Eligibility for Award State courts nationwide. Ordinarily, a The Institute supports the following project grant may not exceed $150,000 The Institute is authorized by general types of projects: a year; however, a grant in excess of Congress to award grants, cooperative 1. Education and training; $100,000 is likely to be rare and agreements, and contracts to the 2. Research and evaluation; awarded only to support highly following entities and types of 3. Demonstration; and promising projects that will have a organizations: 4. Technical assistance. A. State and local courts and their significant national impact. B. Types of Grants agencies (42 U.S.C. 10705(b)(1)(A)). O. Project-Related Income Each application for funding from a In FY 2005, the Institute will support Interest, royalties, registration and State or local court must be approved, the following types of grants: tuition fees, proceeds from the sale of consistent with State law, by the State’s 1. Continuation Grants. products, and other earnings generated Supreme Court or its designated agency See sections II.A., III.D. and VI.A. In as a result of an Institute grant. or council. The latter shall receive all FY 2005, the Institute is allocating all of Registration and tuition fees, and Institute funds awarded to such courts the funds available to support Project proceeds from the sale of products and be responsible for assuring proper Grants to Continuation Grants. generated during the grant period may administration of Institute funds, in 2. Technical Assistance Grants. be counted as match. For a more accordance with section IX.C.2. of this See sections II.B., III.T., and VI.B. In complete description of different types Guideline. FY 2005, the Institute is reserving up to of project-related income, see section B. National nonprofit organizations $300,000 for these grants. IX.G. controlled by, operating in conjunction 3. Judicial Branch Education with, and serving the judicial branches Technical Assistance Grants. P. Scholarship of State governments (42 U.S.C. See sections II.C., III.K., and VI.C. In A grant of up to $1,500 awarded to a 10705(b)(1)(B)). FY 2005, the Institute is reserving up to judge or court manager to cover the cost C. National nonprofit organizations $100,000 for Judicial Branch Education of tuition, transportation, and for the education and training of judges Technical Assistance Grants. reasonable lodging to attend an out-of- and support personnel of the judicial 4. Scholarships. State educational program within the branch of State governments (42 U.S.C. See sections II.D., III.P., and VI.D. In United States. See section VI.D. for a 10705(b)(1)(C)). An applicant is FY 2005, the Institute is reserving up to

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$200,000 for scholarships for judges and a. A letter of intent must be no more denotes that the proposed project has court managers. than 3 single-spaced pages on 81⁄2 by 11 been approved by the State’s highest inch paper and contain a concise but court or the agency or council it has C. Maximum Size of Awards thorough explanation of the need for designated. It denotes further that if the 1. Applicants for continuation grants continuation; an estimate of the funds to Institute approves funding for the may request funding in amounts up to be requested; and a brief description of project, the court or the specified $150,000 for 15 months. anticipated changes in the scope, focus, designee will receive, administer, and 2. Applicants for Technical or audience of the project. be accountable for the awarded funds. Assistance Grants may request funding b. Within 30 days after receiving a in amounts up to $30,000. letter of intent, Institute staff will review (3) Budget Forms (FORM C or C1) 3. Applicants for Judicial Branch the proposed activities for the next Applicants may submit the proposed Education Technical Assistance Grants project period and inform the grantee of project budget either in the tabular may request funding in amounts up to specific issues to be addressed in the format of FORM C or in the spreadsheet $20,000. continuation application and the date format of FORM C1. Applicants 4. Applicants for scholarships may by which the application must be requesting $100,000 or more are request funding in amounts up to submitted. strongly encouraged to use the $1,500. 4. Application Format spreadsheet format. If the proposed D. Length of Grant Periods project period is for more than a year, An application for a continuation 1. Grant periods for continuation a separate form should be submitted for grant must include an application form, each year or portion of a year for which projects ordinarily may not exceed 15 budget forms (with appropriate months. Absent extraordinary grant support is requested, as well as for documentation), a project abstract, a the total length of the project. circumstances, no grant will continue program narrative, a budget narrative, a for more than five years. In addition to FORM C or C1, Certificate of State Approval—FORM B applicants must provide a detailed 2. Grant periods for Technical (if the applicant is a State or local Assistance Grants and Judicial Branch budget narrative providing an court), a Disclosure of Lobbying explanation of the basis for the Education Technical Assistance Grants Activities form (from applicants other ordinarily may not exceed 12 months. estimates in each budget category. (See than units of State or local government), section VI.A.4.d. below.) VI. Applications and any necessary appendices. See If funds from other sources are Appendix D for the application forms. A A. Continuation Grants required to conduct the project, either as continuation application should not match or to support other aspects of the 1. Purpose repeat information contained in a project, the source, current status of the Continuation grants are intended to previously approved application or request, and anticipated decision date support projects that carry out the same other previously submitted materials, must be provided. but should provide specific references type of activities performed under a (4) Assurances (FORM D) previous grant. They are intended to to such materials where appropriate. For a summary of the application maintain or enhance the specific This form lists the statutory, process, visit the Institute’s Web site program or service produced or regulatory, and policy requirements (http://www.statejustice.org) and click established during the prior grant with which recipients of Institute funds on On-Line Tutorials, then Continuation period. must comply. Grant. 2. Limitations (5) Disclosure of Lobbying Activities a. Forms The award of an initial grant to Applicants other than units of State or support a project does not constitute a (1) Application Form (FORM A) local government are required to commitment by the Institute to continue The application form requests basic disclose whether they, or another entity funding. For a project to be considered information regarding the proposed that is part of the same organization as for continuation funding, the grantee project, the applicant, and the total the applicant, have advocated a position must have completed all project tasks amount of funding requested from the before Congress on any issue, and to and met all grant requirements and Institute. It also requires the signature of identify the specific subjects of their conditions in a timely manner, absent an individual authorized to certify on lobbying efforts. (See section VIII.A.7. extenuating circumstances or prior behalf of the applicant that the and the Disclosure of Lobbying Institute approval of changes to the information contained in the Activities form in Appendix D.) project design. Continuation grants are application is true and complete; that b. Project Abstract not intended to provide support for a submission of the application has been project for which the grantee has authorized by the applicant; and that if The abstract should highlight the underestimated the amount of time or funding for the proposed project is purposes, goals, methods, and funds needed to accomplish the project approved, the applicant will comply anticipated benefits of the proposed tasks. Absent extraordinary with the requirements and conditions of project. It should not exceed 1 single- circumstances, no grant will continue the award, including the assurances set spaced page on 81⁄2 by 11 inch paper. for more than five years. forth in FORM D. c. Program Narrative 3. Letters of Intent (2) Certificate of State Approval (FORM The program narrative for a A grantee seeking a continuation grant B) continuation grant application may not must inform the Institute, by letter, of its An application from a State or local exceed 25 double-spaced pages on 81⁄2 intent to submit an application for such court must include a copy of FORM B by 11 inch paper. Margins must be at funding as soon as the need for signed by the State’s Chief Justice or least 1 inch, and type size must be at continued funding becomes apparent Chief Judge, the director of the least 12-point and 12 cpi. The pages but no less than 120 days before the end designated agency, or the head of the should be numbered. This page limit of the current grant period. designated council. The signature does not include the forms, the abstract,

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the budget narrative, and any d. Budget Narrative the estimated total amount to be paid to appendices containing resumes and The budget narrative should provide each consultant, the basis for letters of cooperation or endorsement. the basis for the computation of all compensation rates (e.g., the number of Additional background material should project-related costs. When the days multiplied by the daily consultant be attached only if it is essential to proposed project would be partially rates), and the method for selection. impart a clear understanding of the supported by grants from other funding Rates for consultant services must be set proposed project. Numerous and sources, applicants should make clear in accordance with section IX.I.2.c. lengthy appendices are strongly what costs would be covered by those Prior written Institute approval is discouraged. other grants. Additional background required for any consultant rate in The program narrative should information or schedules may be excess of $300 per day; Institute funds describe the following: attached if they are essential to may not be used to pay a consultant (1) Project Objectives. The applicant obtaining a clear understanding of the more than $900 per day. Honorarium should clearly and concisely state what proposed budget. Numerous and payments must be justified in the same the continuation project is intended to lengthy appendices are strongly manner as consultant payments. accomplish. discouraged. (4) Travel (2) Need for Continuation. The The budget narrative should cover the applicant should explain why costs of all components of the project Transportation costs and per diem continuation of the project is necessary and clearly identify costs attributable to rates must comply with the policies of to achieve the goals of the project, and the project evaluation. Changes in the the applicant organization. If the how the continuation would benefit the funding level from prior years should be applicant does not have an established participating courts or the courts discussed in terms of corresponding travel policy, then travel rates must be community generally, by explaining, for increases or decreases in the scope of consistent with those established by the example, how the original goals and activities or services to be rendered. In Institute or the Federal Government. (A objectives of the project would be addition, the applicant should estimate copy of the Institute’s travel policy is unfulfilled if it were not continued; or the amount of grant funds that would available upon request.) The budget how the value of the project would be remain unobligated at the end of the narrative should include an explanation enhanced by its continuation. current grant period. of the rate used, including the (3) Report of Current Project components of the per diem rate and the (1) Justification of Personnel basis for the estimated transportation Activities. The applicant should discuss Compensation the status of all activities conducted expenses. The purpose of the travel during the previous project period. The applicant should set forth the should also be included in the narrative. percentages of time to be devoted by the Applicants should identify any (5) Equipment activities that were not completed, and individuals who would staff the Grant funds may be used to purchase explain why. proposed project, the annual salary of only the equipment necessary to (4) Evaluation Findings. The each of those persons, and the number demonstrate a new technological applicant should present the key of work days per year used for application in a court or that is findings, impact, or recommendations calculating the percentages of time or otherwise essential to accomplishing the resulting from the evaluation of the daily rates of those individuals. The objectives of the project. Equipment project, if available, and how they applicant should explain any deviations purchases to support basic court would be addressed during the from current rates or established written organizational policies. If grant funds operations ordinarily will not be proposed continuation. If the findings are requested to pay the salary and approved. The applicant should are not yet available, the applicant related costs for a current employee of describe the equipment to be purchased should provide the date by which they a court or other unit of government, the or leased and explain why the would be submitted to the Institute. applicant should explain why this acquisition of that equipment is Ordinarily, the Board will not consider would not constitute a supplantation of essential to accomplish the project’s an application for continuation funding State or local funds in violation of 42 goals and objectives. The narrative until the Institute has received the U.S.C. 10706(d)(1). An acceptable should clearly identify which evaluator’s report. explanation may be that the position to equipment is to be leased and which is (5) Tasks, Methods, Staff, and Grantee be filled is a new one established in to be purchased. The method of Capability. The applicant should fully conjunction with the project or that the procurement should also be described. describe any changes in the tasks to be grant funds would support only the Purchases of automated data processing performed, the methods to be used, the portion of the employee’s time that equipment must comply with section products of the project, and how and to would be dedicated to new or additional IX.I.2.b. whom those products would be duties related to the project. disseminated, as well as any changes in (6) Supplies the assigned staff or the grantee’s (2) Fringe Benefit Computation The applicant should provide a organizational capacity. Applicants The applicant should provide a general description of the supplies should include, in addition, the criteria description of the fringe benefits necessary to accomplish the goals and and methods by which the proposed provided to employees. If percentages objectives of the grant. In addition, the continuation project would be are used, the authority for such use applicant should provide the basis for evaluated. should be presented, as well as a the amount requested for this (6) Task Schedule. The applicant description of the elements included in expenditure category. should present a detailed task schedule the determination of the percentage rate. and timeline for the next project period. (7) Construction (7) Other Sources of Support. The (3) Consultant/Contractual Services and Construction expenses are prohibited applicant should indicate why other Honoraria except for the limited purposes set forth sources of support would be inadequate, The applicant should describe the in section VIII.A.16.b. Any allowable inappropriate, or unavailable. tasks each consultant would perform, construction or renovation expense

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should be described in detail in the provide $50,000 in match. If the second- 1650 King Street, budget narrative. year grant is also $100,000, the court Suite 600, Alexandria, VA 22314. would be required to provide $60,000 in (8) Telephone Receipt of each application will be match. A State or local unit of acknowledged in writing. Extensions of Applicants should include government would have to provide at the deadline for submission of anticipated telephone charges, least 20% of the required match in the applications will not be granted without distinguishing between monthly charges form of cash rather than in-kind support good cause. and long distance charges in the budget (e.g., the value of staff time contributed narrative. Also, applicants should to the project). B. Technical Assistance Grants provide the basis used to calculate the All other grantees must provide match 1. Purpose and Scope monthly and long distance estimates. equaling at least 25% of the amount Technical Assistance Grants are provided by the Institute in the first year (9) Postage awarded to State and local courts and of the project, 30% in the second year, court associations to obtain the Anticipated postage costs for project- 37.5% in the third year, 45% in the assistance of outside experts in related mailings, including distribution fourth year, and 50% in the fifth year. diagnosing, developing, and of the final product(s), should be For example, if the Institute awards a implementing a response to a particular described in the budget narrative. The non-profit organization $100,000 for the problem in a jurisdiction. cost of special mailings, such as for a first year of a grant, the organization survey or for announcing a workshop, would be required to provide $25,000 in 2. Application Procedures should be distinguished from routine match. If the second year grant is also operational mailing costs. The bases for For a summary of the application $100,000, the court would be required procedures for Technical Assistance all postage estimates should be included to provide $30,000 in match. A non- in the budget narrative. Grants, visit the Institute’s Web site profit organization must provide at least (http://www.statejustice.org) and click (10) Printing/Photocopying 10% of the required match in the form On-Line Tutorials, then Technical of cash. Assistance Grant. Anticipated costs for printing or Applicants that do not contemplate photocopying project documents, In lieu of formal applications, making matching contributions applicants for Technical Assistance reports, and publications should be continuously throughout the course of included in the budget narrative, along Grants may submit, at any time, an the project or on a task-by-task basis original and three copies of a detailed with the bases used to calculate these must provide a schedule within 30 days estimates. letter describing the proposed project. after the beginning of the project period Letters from an individual trial or (11) Indirect Costs indicating at what points during the appellate court must be signed by the Recoverable indirect costs are limited project period the matching presiding judge or manager of that court. to no more than 75% of a grantee’s contributions would be made. (See Letters from the State court system must direct personnel costs (salaries plus sections III.L., VIII.A.8., and IX.E.1.) be signed by the Chief Justice or State fringe benefits). Grantees may apply The Institute may waive the match Court Administrator. Letters from court unrecoverable indirect costs to meet and cash match requirements in certain associations must be signed by the their required matching contributions, circumstances. See section VIII.A.8.b. president of the association. e. Letters of Cooperation or Support including the required level of cash 3. Application Format match. See sections III.L. and IX.I.4. If the cooperation of courts, Applicants should describe the organizations, agencies, or individuals Although there is no prescribed form indirect cost rates applicable to the other than the applicant is required to for the letter, or a minimum or grant in detail. If costs often included conduct the project, the applicant maximum page limit, letters of within an indirect cost rate are charged should attach written assurances of application should include the directly (e.g., a percentage of the time of cooperation and availability to the following information: senior managers to supervise project application, or send them under a. Need for Funding. What is the activities), the applicant should specify separate cover. critical need facing the applicant? How that these costs are not included within f. Submission Requirements would the proposed technical assistance its approved indirect cost rate. These Every applicant must submit an help the applicant meet this critical rates must be established in accordance original and three copies of the need? Why cannot State or local with section IX.I.4. If the applicant has application package consisting of FORM resources fully support the costs of the an indirect cost rate or allocation plan A; FORM B, if the application is from required consultant services? approved by any Federal granting a State or local court, or a Disclosure of b. Project Description. What tasks agency, a copy of the approved rate Lobbying Form, if the applicant is not would the consultant be expected to agreement must be attached to the a unit of State or local government; the perform, and how would they be application. Budget Forms (either FORM C or C–1); accomplished? Which organization or the Application Abstract; the Program individual would be hired to provide (12) Match Narrative; the Budget Narrative; and any the assistance, and how was this State and local units of government necessary appendices. consultant selected? If a consultant has must provide match equaling at least The Institute will notify applicants of not yet been identified, what procedures 50% of the amount provided by the the submission deadline when it and criteria would be used to select the Institute in the first year of the project, responds to their letters of intent. A consultant? (Applicants are expected to 60% in the second year, 75% in the postmark or courier receipt will follow their jurisdictions’ normal third year, 90% in the fourth year, and constitute evidence of the submission procedures for procuring consultant 100% in the fifth year. date. Please mark CONTINUATION services.) What specific tasks would the For example, if the Institute awards a APPLICATION on the application consultant(s) and court staff undertake? State court $100,000 for the first year of package envelope and send it to: What is the schedule for completion of a grant, the court would be required to State Justice Institute, each required task and the entire

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project? How would the applicant aggregated under the Consultant/ C. Judicial Branch Education Technical oversee the project and provide Contractual category. Assistance Grants guidance to the consultant, and who at The budget narrative should provide 1. Purpose and Scope the court or association would be the basis for all project-related costs, responsible for coordinating all project including the basis for determining the Judicial Branch Education Technical tasks and submitting quarterly progress estimated consultant costs, if Assistance (JBE TA) Grants are awarded and financial status reports? compensation of the consultant is to State and local courts and court If the consultant has been identified, required (e.g., the number of days per associations to support: (1) The the applicant should provide a letter task times the requested daily provision of expert strategic assistance from that individual or organization consultant rate). Applicants should be designed to enable them to present documenting interest in and availability aware that consultant rates above $300 judicial branch education programs; for the project, as well as the per day must be approved in advance by and/or (2) replication or modification of consultant’s ability to complete the the Institute, and that no consultant will a model training program originally assignment within the proposed time be paid more than $900 per day from developed with Institute funds. frame and for the proposed cost. The Institute funds. In addition, the budget Ordinarily, the Institute will support the consultant must agree to submit a should provide for submission of two adaptation of a specific curriculum once detailed written report to the court and copies of the consultant’s final report to (i.e., with one grant) in a given State. JBE TA Grants may support the Institute upon completion of the the Institute. technical assistance. consultant assistance in maintaining or As with other awards to State or local developing systematic or innovative c. Likelihood of Implementation. courts, match must be provided in an What steps have been or would be taken judicial branch educational amount equal to at least 50% of the programming. The assistance might to facilitate implementation of the grant amount requested, and 20% of the consultant’s recommendations upon include expert consultation in match provided must be cash. The developing strategic plans to ensure the completion of the technical assistance? Institute may waive the match and cash For example, if the support or continued provision of judicial branch match requirements in certain education programming despite fiscal cooperation of specific court officials or circumstances. See section VIII.A.8.b. committees, other agencies, funding constraints; development of improved bodies, organizations, or a court other Recipients of Technical Assistance methods for assessing the need for, and than the applicant would be needed to Grants do not have to submit an audit evaluating the quality and impact of, adopt the changes recommended by the report but must maintain appropriate court education programs and their consultant and approved by the court, documentation to support expenditures. administration by State or local courts; how would they be involved in the (See section VIII.A.3.) faculty development; and/or topical program presentations. Such assistance review of the recommendations and 5. Submission Requirements development of the implementation may be tailored to address the needs of plan? Letters of application may be a particular State or local court or specific categories of court employees d. Support for the Project from the submitted at any time; however, all of throughout a State or in a region. State Supreme Court or its Designated the letters received during a calendar Agency or Council. If a State or local quarter will be considered at one time. 2. Application Procedures Applicants submitting letters by January court submits a request for technical For a summary of the application assistance, it must include written 7, 2005 will be notified of the Institute’s decision by April 8, 2005; those procedures for Judicial Branch concurrence on the need for the Education Technical Assistance Grants, technical assistance. This concurrence submitting letters between January 8 and February 25, 2005 will be notified visit the Institute’s Web site (http:// may be a copy of SJI Form B (see www.statejustice.org) and click on On- Appendix D) signed by the Chief Justice by June 10, 2005; those submitting letters between February 26 and June 3, Line Tutorials, then Judicial Branch of the State Supreme Court or the Chief Education Technical Assistance Grant. Justice’s designee, or a letter from the 2005 will be notified by August 19, 2005; and those submitting letters In lieu of formal applications, State Chief Justice or designee. The applicants should submit an original concurrence may be submitted with the between June 4 and September 23, 2005 will be notified by December 2, 2005. and three photocopies of a detailed applicant’s letter or under separate letter. cover prior to consideration of the If the support or cooperation of application. The concurrence also must agencies, funding bodies, organizations, 3. Application Format specify whether the State Supreme or courts other than the applicant would Although there is no prescribed Court would receive, administer, and be needed in order for the consultant to format for the letter, or a minimum or account for the grant funds, if awarded, perform the required tasks, written maximum page limit, letters of or would designate the local court or a assurances of such support or application should include the specified agency or council to receive cooperation should accompany the following information: the funds directly. application letter. Support letters also a. For on-site consultant assistance: may be submitted under separate cover; (1) Need for Funding. What is the 4. Budget and Matching State however, to ensure that there is critical judicial branch educational need Contribution sufficient time to bring them to the facing the court or association? How A completed Form E, Line-Item attention of the Board’s Technical would the proposed technical assistance Budget Form (see Appendix E), and Assistance Grant Committee, letters sent help the applicant meet this critical budget narrative must be included with under separate cover must be received need? Why cannot State or local the letter requesting technical not less than three weeks prior to the resources fully support the costs of the assistance. The estimated cost of the Board meeting at which the technical required consultant services? technical assistance services should be assistance requests will be considered (2) Project Description. What tasks broken down into the categories listed (i.e., by February 16, April 21, June 30, would the consultant be expected to on the budget form rather than and October 13, 2005). perform, and how would they be

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accomplished? Which organization or specified agency or council to receive and the source of the match offered. As individual would be hired to provide the funds directly. with other awards to State or local the assistance, and how was this b. For adaptation of a curriculum: (1) courts, match must be provided in an consultant selected? If a consultant has Project Description. What is the title of amount equal to at least 50% of the not yet been identified, what procedures the model curriculum to be adapted and grant amount requested. Recipients of and criteria would be used to select the who originally developed it with JBE TA grants are not required to consultant? (Applicants are expected to Institute funding? Why is this education provide a cash match. The Institute may follow their jurisdictions’ normal program needed at the present time? waive the match requirements in certain procedures for procuring consultant What are the project’s goals? What are circumstances. See section VIII.A.8.b. services.) What specific tasks would the the learning objectives of the adapted consultant(s) and court staff or curriculum? What program components 5. Submission Requirements association members undertake? What is would be implemented, and what types Letters of application may be the schedule for completion of each of modifications, if any, are anticipated submitted at any time; however, all of required task and the entire project? in length, format, learning objectives, the letters received during a calendar How would the applicant oversee the teaching methods, or content? Who quarter will be considered at one time. project and provide guidance to the would be responsible for adapting the Applicants submitting letters by January consultant, and who at the court or model curriculum? Who would the 7, 2005 will be notified of the Institute’s affiliated with the association would be participants be, how many would there decision by April 8, 2005; those responsible for coordinating all project be, how would they be recruited, and submitting letters between January 8 tasks and submitting quarterly progress from where would they come (e.g., from and February 25, 2005 will be notified and financial status reports? across the State, from a single local by June 10, 2005; those submitting If the consultant has been identified, jurisdiction, from a multi-State region)? letters between February 26 and June 3, the applicant should provide a letter (2) Need for Funding. Why are 2005 will be notified by August 19, from that individual or organization sufficient State or local resources 2005; and those submitting letters documenting interest in and availability unavailable to fully support the between June 4 and September 23, 2005 for the project, as well as the modification and presentation of the will be notified by December 2, 2005. consultant’s ability to complete the model curriculum? What is the potential For curriculum adaptation requests, assignment within the proposed time for replicating or integrating the adapted applicants should allow at least 60 days frame and for the proposed cost. The curriculum in the future using State or between the notification deadline and consultant must agree to submit a local funds, once it has been the date of the proposed program to detailed written report to the court and successfully adapted and tested? allow sufficient time for needed the Institute upon completion of the (3) Likelihood of Implementation. planning. For example, a court that technical assistance. What is the proposed timeline, plans to conduct an education program (3) Likelihood of Implementation. including the project start and end in June 2005 should submit its What steps have been or would be taken dates? On what date(s) would the application no later than January 7, to facilitate implementation of the judicial branch education program be 2005, in time for the Board’s decision by consultant’s recommendations upon presented? What process would be used April 8, 2005. completion of the technical assistance? to modify and present the program? For example, if the support or Who would serve as faculty, and how D. Scholarships cooperation of specific court or were they selected? What measures 1. Purpose and Scope association officials or committees, would be taken to facilitate subsequent other agencies, funding bodies, presentations of the program? The purposes of the Institute’s organizations, or a court other than the (Ordinarily, an independent evaluation scholarship program are to enhance the applicant would be needed to adopt the of a curriculum adaptation project is not skills, knowledge, and abilities of judges changes recommended by the required; however, the results of any and court managers; enable State court consultant and approved by the evaluation should be included in the judges and court managers to attend out- applicant, how would they be involved final report.) of-State educational programs in the review of the recommendations (4) Expressions of Interest by Judges sponsored by national and State and development of the implementation and/or Court Personnel. Does the providers that they could not otherwise plan? proposed program have the support of attend because of limited State, local, (4) Support for the Project from the the court system or association and personal budgets; and provide State Supreme Court or its Designated leadership, and of judges, court States, judicial educators, and the Agency or Council. If a State or local managers, and judicial branch education Institute with evaluative information on court submits an application, it must personnel who are expected to attend? a range of judicial and court-related include written concurrence on the (Applicants may demonstrate this by education programs. need for the technical assistance. This attaching letters of support.) Scholarships will be granted to concurrence may be a copy of SJI Form (5) Chief Justice’s Concurrence. Local individuals only for the purpose of B (see Appendix D) signed by the Chief courts should attach a concurrence form attending an educational program in Justice of the State Supreme Court or the signed by the Chief Justice of the State another State. An applicant may apply Chief Justice’s designee, or a letter from or his or her designee. (See Appendix D, for a scholarship for only one the State Chief Justice or designee. The FORM B.) educational program during any one concurrence may be submitted with the application cycle. applicant’s letter or under separate 4. Budget and Matching State Scholarship funds may be used only cover prior to consideration of the Contribution to cover the costs of tuition, application. The concurrence also must Applicants should attach a copy of transportation, and reasonable lodging specify whether the State Supreme budget Form E (see Appendix E) and a expenses (not to exceed $150 per night, Court would receive, administer, and budget narrative (see A.4.d. in this including taxes). Transportation account for the grant funds, if awarded, section) that describes the basis for the expenses may include round-trip coach or would designate the local court or a computation of all project-related costs airfare or train fare. Scholarship

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recipients are strongly encouraged to may include workshops or other received for an application to be take advantage of excursion or other training sessions. considered. If the Concurrence form or special airfares (e.g., reductions offered Applicants are encouraged not to wait letter of support is sent separately from when a ticket is purchased 21 days in for the decision on a scholarship to the application, the postmark date of the advance of the travel date) when making register for an educational program they last item to be sent will be used in their travel arrangements. Recipients wish to attend. applying the above criteria. who drive to a program site may receive c. Limitation. Beginning in FY 2005, All applications should be sent by $.375/mile up to the amount of the applicants may not receive more than mail or courier (not fax or e-mail) to: advanced-purchase round-trip airfare one scholarship in a three-year period, Scholarship Program Coordinator, between their homes and the program absent programmatic reasons that State Justice Institute, sites. Funds to pay tuition, require attendance at a series of courses 1650 King Street, Suite 600, transportation, and lodging expenses in held on a more frequent schedule. Alexandria, VA 22314. excess of $1,500 and other costs of 3. Forms VII. Application Review Procedures attending the program—such as meals, materials, transportation to and from a. Scholarship Application—FORM A. Preliminary Inquiries airports, and local transportation S1 (Appendix F). The Scholarship Application requests The Institute staff will answer (including rental cars)—at the program inquiries concerning application site must be obtained from other sources basic information about the applicant and the educational program the procedures. The staff contact will be or borne by the scholarship recipient. named in the Institute’s letter Scholarship applicants are encouraged applicant would like to attend. It also addresses the applicant’s commitment acknowledging receipt of the to check other sources of financial application. assistance and to combine aid from to share the skills and knowledge gained various sources whenever possible. with local court colleagues and to B. Selection Criteria submit an evaluation of the program the A scholarship is not transferable to 1. Continuation Grant Applications another individual. It may be used only applicant attends. The Scholarship for the course specified in the Application must bear the original a. Continuation Grant applications application unless the applicant’s signature of the applicant. Faxed or will be rated on the basis of the criteria request to attend a different course that photocopied signatures will not be set forth below. The Institute will meets the eligibility requirements is accepted. accord the greatest weight to the approved in writing by the Institute. b. Scholarship Application following criteria: (1) The soundness of the Decisions on such requests will be made Concurrence—FORM S2 (Appendix F). Judges and court managers applying methodology; within 30 days after the receipt of the for scholarships must submit the written (2) The demonstration of need for the request letter. concurrence of the Chief Justice of the project; 2. Eligibility Requirements State’s Supreme Court (or the Chief (3) The appropriateness of the Justice’s designee) on the Institute’s proposed evaluation design; For a summary of the scholarship Judicial Education Scholarship (4) The key findings and award process, visit the Institute’s Web Concurrence form (see Appendix F). recommendations of the most recent site at www.statejustice.org and click on The signature of the presiding judge of evaluation and the proposed responses On-Line Tutorials, then Scholarship. the applicant’s court cannot be to those findings and recommendations; a. Recipients. Scholarships can be substituted for that of the Chief Justice (5) The applicant’s management plan awarded only to full-time judges of State or the Chief Justice’s designee. Court and organizational capabilities; or local trial and appellate courts; full- managers, other than elected clerks of (6) The qualifications of the project’s time professional, State, or local court court, also must submit a letter of staff; personnel with management support from their immediate (7) The products and benefits responsibilities; and supervisory and supervisors. resulting from the project, including the management probation personnel in extent to which the project will have judicial branch probation offices. Senior 4. Submission Requirements long-term benefits for State courts across judges, part-time judges, quasi-judicial Scholarship applications must be the nation; hearing officers including referees and submitted during the periods specified (8) The degree to which the findings, commissioners, administrative law below: procedures, training, technology, or judges, staff attorneys, law clerks, line January 3 and February 28, 2005, for other results of the project can be staff, law enforcement officers, and programs beginning between April 1 transferred to other jurisdictions; other executive branch personnel are and June 30, 2005; (9) The reasonableness of the not eligible to receive a scholarship. April 1 and May 27, 2005, for proposed budget; and b. Courses. A scholarship can be programs beginning between July 1 and (10) The demonstration of cooperation awarded only for a course presented in September 30, 2005; and support of other agencies that may a State other than the one in which the July 5 and August 29, 2005 for be affected by the project. applicant resides or works. The course programs beginning between October 1 b. In determining which projects to must be designed to enhance the skills and December 31, 2005; and support, the Institute will also consider of new or experienced judges and court October 3 and November 28, 2005 for whether the applicant is a State court, managers; or be offered by a recognized programs beginning between January 1 a national court support or education graduate program for judges or court and March 31, 2006. organization, a non-court unit of managers. The annual or mid-year No exceptions or extensions will be government, or other type of entity meeting of a State or national granted. Applications sent prior to the eligible to receive grants under the organization of which the applicant is a beginning of an application period will Institute’s enabling legislation (see member does not qualify as an out-of- be treated as having been sent one week section IV.); the availability of financial State educational program for after the beginning of that application assistance from other sources for the scholarship purposes, even though it period. All the required items must be project; the amount and nature (cash

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and in-kind) of the applicant’s match; modified curriculum into ongoing and a rating sheet assigning points for the extent to which the proposed project educational programming; and each relevant selection criterion. The would also benefit the Federal courts or (5) Expressions of interest by the Board of Directors has delegated its help State courts enforce Federal judges and/or court personnel who authority to approve Technical constitutional and legislative would be directly involved in or Assistance and Judicial Branch requirements; and the level of affected by the project. Education Technical Assistance Grants appropriations available to the Institute The Institute will also consider factors to the committee established for each in the current year and the amount such as the reasonableness of the program. The committee will review the expected to be available in succeeding amount requested, compliance with applications competitively. fiscal years. match requirements, diversity of subject The Chairman of the Board will sign matter, geographic diversity, the level of approved awards on behalf of the 2. Technical Assistance Grant appropriations available in the current Institute. Applications year, and the amount expected to be 3. Scholarships Technical Assistance Grant available in succeeding fiscal years. applications will be rated on the basis A committee of the Institute’s Board of the following criteria: 4. Scholarships of Directors will review scholarship a. Whether the assistance would Scholarships will be awarded on the applications quarterly. The Board of address a critical need of the applicant; basis of: Directors has delegated its authority to b. The soundness of the technical a. The date on which the application approve scholarships to the committee assistance approach to the problem; and concurrence (and support letter, if established for the program. The c. The qualifications of the required) were sent; committee will review the applications consultant(s) to be hired, or the specific b. The unavailability of State or local competitively. criteria that will be used to select the funds to cover the costs of attending the The Chairman of the Board will sign consultant(s); program or scholarship funds from approved awards on behalf of the d. The commitment of the court or another source; Institute. association to act on the consultant’s c. The absence of educational D. Return Policy recommendations; and programs in the applicant’s State e. The reasonableness of the proposed addressing the topic(s) covered by the Unless a specific request is made, budget. educational program for which the unsuccessful applications will not be The Institute also will consider factors scholarship is being sought; returned. Applicants are advised that such as the level and nature of the d. Geographic balance among the Institute records are subject to the match that would be provided, diversity recipients; provisions of the Federal Freedom of of subject matter, geographic diversity, e. The balance of scholarships among Information Act, 5 U.S.C. 552. the level of appropriations available to educational programs; E. Notification of Board Decision the Institute in the current year, and the f. The balance of scholarships among 1. The Institute will send written amount expected to be available in the types of courts represented; and notice to applicants concerning all succeeding fiscal years. g. The level of appropriations Board decisions to approve, defer, or available to the Institute in the current 3. Judicial Branch Education Technical deny their respective applications. For year and the amount expected to be Assistance Grant Applications all applications (except scholarships), available in succeeding fiscal years. the Institute also will convey the key Judicial Branch Education Technical The postmark or courier receipt will issues and questions that arose during Assistance Grant applications will be be used to determine the date on which the review process. A decision by the rated on the basis of the following the application form and other required Board to deny an application may not be criteria: items were sent. a. For on-site consultant assistance: appealed, but it does not prohibit (1) Whether the assistance would C. Review and Approval Process resubmission of a proposal based on that application in a subsequent funding address a critical need of the court or 1. Continuation Grant Applications association; cycle. The Institute will also notify the (2) The soundness of the technical The Institute’s Board of Directors will State court administrator when grants assistance approach to the problem; review the applications competitively. are approved by the Board to support (3) The qualifications of the The Institute staff will prepare a projects that will be conducted by or consultant(s) to be hired, or the specific narrative summary and a rating sheet involve courts in that State. criteria that will be used to select the assigning points for each relevant 2. The Institute intends to notify each consultant(s); selection criterion. The staff will present scholarship applicant of the Board (4) The commitment of the court or the narrative summaries and rating committee’s decision within 30 days association to act on the consultant’s sheets to the Board for its review. The after the close of the relevant recommendations; and Board will review all application application period. (5) The reasonableness of the summaries and decide which projects it F. Response to Notification of Approval proposed budget. will fund. The decision to fund a project b. For curriculum adaptation projects: is solely that of the Board of Directors. With the exception of those approved (1) The goals and objectives of the The Chairman of the Board will sign for scholarships, applicants have 30 proposed project; approved awards on behalf of the days from the date of the letter notifying (2) The need for outside funding to Institute. them that the Board has approved their support the program; application to respond to any revisions (3) The appropriateness of the 2. Technical Assistance and Judicial requested by the Board. If the requested approach in achieving the project’s Branch Education Technical Assistance revisions (or a reasonable schedule for educational objectives; Grant Applications submitting such revisions) have not (4) The likelihood of effective The Institute staff will prepare a been submitted to the Institute within implementation and integration of the narrative summary of each application 30 days after notification, the approval

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may be rescinded and the application 5. Conflict of Interest Agencies, February 18, 1983, and presented to the Board for Personnel and other officials statement of Government Patent Policy). reconsideration. connected with Institute-funded 7. Lobbying VIII. Compliance Requirements programs must adhere to the following a. Funds awarded to recipients by the The State Justice Institute Act requirements: Institute shall not be used, indirectly or a. No official or employee of a contains limitations and conditions on directly, to influence Executive Orders recipient court or organization shall grants, contracts, and cooperative or similar promulgations by Federal, participate personally through decision, agreements awarded by the Institute. State or local agencies, or to influence approval, disapproval, recommendation, The Board of Directors has approved the passage or defeat of any legislation the rendering of advice, investigation, or additional policies governing the use of by Federal, State or local legislative otherwise in any proceeding, Institute grant funds. These statutory bodies. 42 U.S.C. 10706(a). and policy requirements are set forth application, request for a ruling or other b. It is the policy of the Board of below. determination, contract, grant, Directors to award funds only to support cooperative agreement, claim, applications submitted by organizations A. Recipients of Project and controversy, or other particular matter Continuation Grants that would carry out the objectives of in which Institute funds are used, their applications in an unbiased 1. Advocacy where, to his or her knowledge, he or manner. Consistent with this policy and she or his or her immediate family, No funds made available by the the provisions of 42 U.S.C. 10706, the partners, organization other than a Institute will not knowingly award a Institute may be used to support or public agency in which he or she is conduct training programs for the grant to an applicant that has, directly serving as officer, director, trustee, or through an entity that is part of the purpose of advocating particular partner, or employee or any person or nonjudicial public policies or same organization as the applicant, organization with whom he or she is advocated a position before Congress on encouraging nonjudicial political negotiating or has any arrangement activities. 42 U.S.C. 10706(b). the specific subject matter of the concerning prospective employment, application. 2. Approval of Key Staff has a financial interest. 8. Matching Requirements If the qualifications of an employee or b. In the use of Institute project funds, consultant assigned to a key project staff an official or employee of a recipient All grantees other than scholarship position are not described in the court or organization shall avoid any recipients and individuals who receive application or if there is a change of a action which might result in or create ‘‘think piece’’ grants are required to person assigned to such a position, the the appearance of: provide match. See section III.L. for the recipient must submit a description of (1) Using an official position for definition of match. The amount and the qualifications of the newly assigned private gain; or nature of required match depends on person to the Institute. Prior written (2) Affecting adversely the confidence the type of organization receiving the approval of the qualifications of the new of the public in the integrity of the grant and the duration of the Institute’s person assigned to a key staff position Institute program. support. must be received from the Institute c. Requests for proposals or The grantee is responsible for before the salary or consulting fee of invitations for bids issued by a recipient ensuring that the total amount of match that person and associated costs may be of Institute funds or a subgrantee or proposed is actually contributed. If a paid or reimbursed from grant funds. subcontractor will provide notice to proposed contribution is not fully met, prospective bidders that the contractors the Institute may reduce the award 3. Audit who develop or draft specifications, amount accordingly, in order to Recipients of project and continuation requirements, statements of work, and/ maintain the ratio originally provided grants must provide for an annual fiscal or requests for proposals for a proposed for in the award agreement (see section audit which includes an opinion on procurement will be excluded from IX.E.1.). whether the financial statements of the bidding on or submitting a proposal to The Board of Directors considers the grantee present fairly its financial compete for the award of such amount and nature of unrequired match position and its financial operations are procurement. contributed by applicants in making in accordance with generally accepted 6. Inventions and Patents grant decisions. Cash match and non- accounting principles. (See section IX.K. cash match may be provided, subject to of the Guideline for the requirements of If any patentable items, patent rights, the requirements of subsection a. below. such audits.) Scholarship recipients, processes, or inventions are produced in a. Continuation Grants Judicial Branch Education Technical the course of Institute-sponsored work, All grantees are required to assume a Assistance Grants, and Technical such fact shall be promptly and fully greater share of project support over Assistance Grants are not required to reported to the Institute. Unless there is time. submit an audit, but they must maintain a prior agreement between the grantee (1) State and local units of appropriate documentation to support and the Institute on disposition of such government. State and local units of all expenditures. items, the Institute shall determine government are required to provide whether protection of the invention or match equaling at least 50% of the 4. Budget Revisions discovery shall be sought. The Institute amount provided by SJI in the first year Budget revisions among direct cost will also determine how the rights in of the project, 60% in the second year, categories that (a) transfer grant funds to the invention or discovery, including 75% in the third year, 90% in the fourth an unbudgeted cost category or (b) rights under any patent issued thereon, year, and 100% in the fifth year. For individually or cumulatively exceed shall be allocated and administered in example, if SJI awards a State court five percent of the approved original order to protect the public interest $100,000 for the first year of a grant, the budget or the most recently approved consistent with ‘‘Government Patent court would be required to provide revised budget require prior Institute Policy’’ (President’s Memorandum for $50,000 in match. If the second-year approval. Heads of Executive Departments and grant is also $100,000, the court is

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required to provide $60,000 in match. A party or association, or the campaign of costs through the sale of grant products. court that wishes to limit its second- any candidate for public or party office. Written requests to recover costs year contribution to $50,000 may ask Recipients are also prohibited from ordinarily should be received during the the Institute for a reduced amount, i.e., using funds in advocating or opposing grant period and should specify the $83,333, in order to meet the 60% any ballot measure, initiative, or nature and extent of the costs to be requirement. referendum. Officers and employees of recouped, the reason that such costs (2) All other grantees. All other recipients shall not intentionally were not budgeted (if the rationale was grantees are required to provide match identify the Institute or recipients with not disclosed in the approved equaling at least 25% of the amount any partisan or nonpartisan political application), the number of copies to be provided by the Institute in the first year activity associated with a political party sold, the intended audience for the of the project, 30% in the second year, or association, or the campaign of any products to be sold, and the proposed 37.5% in the third year, 45% in the candidate for public or party office. 42 sale price. If the product is to be sold fourth year, and 50% in the fifth year. U.S.C. 10706(a). for more than $25, the written request also should include a detailed For example, if the Institute awards a 11. Products non-profit organization $100,000 for the itemization of costs that will be first year of a grant, the organization a. Acknowledgment, Logo, and recovered and a certification that the must provide $25,000 in match. If the Disclaimer costs were not supported by either second-year grant is also $100,000, the (1) Recipients of Institute funds must Institute grant funds or grantee grantee is required to provide $30,000 in acknowledge prominently on all matching contributions. match. An organization that wishes to products developed with grant funds (3) In the event that the sale of grant limit its second-year contribution to that support was received from the products results in revenues that exceed $25,000 may ask the Institute for a Institute. The ‘‘SJI’’ logo must appear on the costs to develop, produce, and reduced amount, i.e., $83,333, in order the front cover of a written product, or disseminate the product, the revenue to meet the 30% requirement. in the opening frames of a video must continue to be used for the b. Waiver. product, unless another placement is authorized purposes of the Institute- (1) Match generally. approved in writing by the Institute. funded project or other purposes (a) The match requirement for State This includes final products printed or consistent with the State Justice and local units of government may be otherwise reproduced during the grant Institute Act that have been approved by waived in exceptionally rare period, as well as reprintings or the Institute. See sections III.O. and circumstances upon the request of the reproductions of those materials IX.G. for requirements regarding project- Chief Justice of the highest court in the following the end of the grant period. A related income realized during the State and approval by the Board of camera-ready logo sheet is available project period. Directors. 42 U.S.C. 10705(d). from the Institute upon request. c. Copyrights (b) The match requirement for all (2) Recipients also must display the Except as otherwise provided in the other grantees required to provide following disclaimer on all grant terms and conditions of an Institute match may be waived in exceptionally products: ‘‘This [document, film, award, a recipient is free to copyright rare circumstances upon the request of videotape, etc.] was developed under any books, publications, or other an appropriate official and approval by [grant/cooperative agreement] number copyrightable materials developed in the Board of Directors. SJI-[insert number] from the State the course of an Institute-supported (2) Cash match. For all grantees Justice Institute. The points of view project, but the Institute shall reserve a required to provide cash match, the expressed are those of the [author(s), royalty-free, nonexclusive and requirement may be waived upon the filmmaker(s), etc.] and do not irrevocable right to reproduce, publish, applicant’s demonstration that necessarily represent the official or otherwise use, and to authorize providing the required cash match will position or policies of the State Justice others to use, the materials for purposes cause the applicant a financial hardship. Institute.’’ consistent with the State Justice (3) The Board of Directors encourages b. Charges for Grant-Related Products/ Institute Act. all applicants to provide the maximum Recovery of Costs d. Distribution amount of in-kind and cash match (1) When Institute funds fully cover In addition to the distribution possible, even if a waiver is approved. the cost of developing, producing, and specified in the grant application, The amount and nature of match are disseminating a product (e.g., a report, grantees shall send: criteria in the grant selection process. curriculum, videotape, or software), the (1) Fifteen (15) copies of each final See section VII.B.1.b. product should be distributed to the product developed with grant funds to field without charge. When Institute the Institute, unless the product was 9. Nondiscrimination funds only partially cover the developed under either a Technical No person may, on the basis of race, development, production, or Assistance or a Judicial Branch sex, national origin, disability, color, or dissemination costs, the grantee may, Education Technical Assistance grant, creed be excluded from participation in, with the Institute’s prior written in which case submission of 2 copies is denied the benefits of, or otherwise approval, recover its costs for required; subjected to discrimination under any developing, producing, and (2) An electronic version of the program or activity supported by disseminating the material to those product in .html or .pdf format to the Institute funds. Recipients of Institute requesting it, to the extent that those Institute; and funds must immediately take any costs were not covered by Institute (3) One copy of each final product measures necessary to effectuate this funds or grantee matching developed with grant funds to the provision. contributions. library established in each State to (2) Applicants should disclose their collect materials prepared with Institute 10. Political Activities intent to sell grant-related products in support. (A list of the libraries is No recipient may contribute or make the application. Grantees must obtain contained in Appendix A. Labels for available Institute funds, program the written prior approval of the these libraries are available on the personnel, or equipment to any political Institute of their plans to recover project Institute’s Web site, http://

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www.statejustice.org.) Grantees that problem areas that have developed and 15. State and Local Court Applications develop Web-based electronic products how they will be resolved, and the must send a hard-copy document to the activities scheduled during the next Each application for funding from a SJI-designated libraries and other reporting period. State or local court must be approved, consistent with State law, by the State’s appropriate audiences to alert them to b. The quarterly Financial Status the availability of the Web site or Supreme Court, or its designated agency Report must be submitted in accordance or council. The Supreme Court or its electronic product. Recipients of with section IX.H.2. of this Guideline. A Judicial Branch Education Technical designee shall receive, administer, and final project Progress Report and be accountable for all funds awarded on Assistance and Technical Assistance Financial Status Report shall be Grants are not required to submit final the basis of such an application. 42 submitted within 90 days after the end U.S.C. 10705(b)(4). products to State libraries. of the grant period in accordance with (5) A press release describing the section IX.L.1. of this Guideline. 16. Supplantation and Construction project and announcing the results to a list of national and State judicial branch 14. Research To ensure that funds are used to organizations provided by the Institute. supplement and improve the operation e. Institute Approval a. Availability of Research Data for of State courts, rather than to support No grant funds may be obligated for Secondary Analysis basic court services, funds shall not be publication or reproduction of a final Upon request, grantees must make used for the following purposes: product developed with grant funds available for secondary analysis a a. To supplant State or local funds without the written approval of the diskette(s) or data tape(s) containing supporting a program or activity (such Institute. Grantees shall submit a final research and evaluation data collected as paying the salary of court employees draft of each written product to the under an Institute grant and the who would be performing their normal Institute for review and approval. The accompanying code manual. Grantees duties as part of the project, or paying draft must be submitted at least 30 days may recover the actual cost of rent for space which is part of the before the product is scheduled to be duplicating and mailing or otherwise court’s normal operations); sent for publication or reproduction to transmitting the data set and manual permit Institute review and from the person or organization b. to construct court facilities or incorporation of any appropriate requesting the data. Grantees may structures, except to remodel existing changes required by the Institute. provide the requested data set in the facilities or to demonstrate new Grantees must provide for timely format in which it was created and architectural or technological reviews by the Institute of videotape or analyzed. techniques, or to provide temporary CD–ROM products at the treatment, facilities for new personnel or for b. Confidentiality of Information script, rough cut, and final stages of personnel involved in a demonstration development or their equivalents. Except as provided by Federal law or experimental program; or f. Original Material other than the State Justice Institute Act, c. solely to purchase equipment. All products prepared as the result of no recipient of financial assistance from Institute-supported projects must be SJI may use or reveal any research or 17. Suspension or Termination of originally-developed material unless statistical information furnished under Funding otherwise specified in the award the Act by any person and identifiable After providing a recipient reasonable documents. Material not originally to any specific private person for any notice and opportunity to submit developed that is included in such purpose other than the purpose for written documentation demonstrating products must be properly identified, which the information was obtained. why fund termination or suspension whether the material is in a verbatim or Such information and copies thereof should not occur, the Institute may extensive paraphrase format. shall be immune from legal process, and terminate or suspend funding of a shall not, without the consent of the 12. Prohibition Against Litigation project that fails to comply substantially person furnishing such information, be Support with the Act, the Guideline, or the terms admitted as evidence or used for any No funds made available by the and conditions of the award. 42 U.S.C. purpose in any action, suit, or other 10708(a). Institute may be used directly or judicial, legislative, or administrative indirectly to support legal assistance to proceedings. 18. Title to Property parties in litigation, including cases c. Human Subject Protection involving capital punishment. At the conclusion of the project, title All research involving human subjects to all expendable and nonexpendable 13. Reporting Requirements shall be conducted with the informed personal property purchased with a. Recipients of Institute funds other consent of those subjects and in a Institute funds shall vest in the recipient than scholarships must submit manner that will ensure their privacy court, organization, or individual that Quarterly Progress and Financial Status and freedom from risk or harm and the purchased the property if certification is Reports within 30 days of the close of protection of persons who are not made to and approved by the Institute each calendar quarter (that is, no later subjects of the research but would be that the property will continue to be than January 30, April 30, July 30, and affected by it, unless such procedures used for the authorized purposes of the October 30). Two copies of each report and safeguards would make the research Institute-funded project or other must be sent. The Quarterly Progress impractical. In such instances, the purposes consistent with the State Reports shall include a narrative Institute must approve procedures Justice Institute Act. If such certification description of project activities during designed by the grantee to provide is not made or the Institute disapproves the calendar quarter, the relationship human subjects with relevant such certification, title to all such between those activities and the task information about the research after property with an aggregate or individual schedule and objectives set forth in the their involvement and to minimize or value of $1,000 or more shall vest in the approved application or an approved eliminate risk or harm to those subjects Institute, which will direct the adjustment thereto, any significant due to their participation. disposition of the property.

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B. Recipients of Judicial Branch Scholarship Payment Vouchers 7. Office of Management and Budget Education Technical Assistance and should be submitted within 90 days (OMB) Circular A–128, Audits of State Technical Assistance Grants after the end of the course which the and Local Governments. Recipients of Judicial Branch recipient attended. 8. Office of Management and Budget Education Technical Assistance and 3. Scholarship recipients are (OMB) Circular A–133, Audits of Technical Assistance Grants must encouraged to check with their tax Institutions of Higher Education and comply with the requirements listed in advisors to determine whether the Other Non-profit Institutions. section VIII.A. (except the requirements scholarship constitutes taxable income under Federal and State law. C. Supervision and Monitoring pertaining to audits in section VIII.A.3. Responsibilities and product dissemination and IX. Financial Requirements approval in section VIII.A.11.d. and e.) 1. Grantee Responsibilities A. Purpose and the reporting requirements below: All grantees receiving awards from The purpose of this section is to 1. Judicial Branch Education Technical the Institute are responsible for the establish accounting system Assistance Grant Reporting management and fiscal control of all requirements and offer guidance on Requirements funds. Responsibilities include procedures to assist all grantees, accounting for receipts and Recipients of Judicial Branch subgrantees, contractors, and other expenditures, maintaining adequate Education Technical Assistance Grants organizations in: financial records, and refunding must submit one copy of the manuals, 1. Complying with the statutory expenditures disallowed by audits. handbooks, conference packets, or requirements for the award, consultant’s report developed under the disbursement, and accounting of funds; 2. Responsibilities of State Supreme grant at the conclusion of the grant 2. Complying with regulatory Court period, along with a final report that requirements of the Institute for the a. Each application for funding from includes any evaluation results and financial management and disposition a State or local court must be approved, explains how the grantee intends to of funds; consistent with State law, by the State’s present the educational program in the 3. Generating financial data to be used Supreme Court, or its designated agency future and/or implement the in planning, managing, and controlling or council. (See section III.F.) consultant’s recommendations, as well projects; and b. The State Supreme Court or its as two copies of the consultant’s report. 4. Facilitating an effective audit of designee shall receive all Institute funds funded programs and projects. 2. Technical Assistance Grant Reporting awarded to such courts; be responsible Requirements B. References for assuring proper administration of Recipients of Technical Assistance Except where inconsistent with Institute funds; and be responsible for Grants must submit to the Institute one specific provisions of this Guideline, the all aspects of the project, including copy of a final report that explains how following circulars are applicable to proper accounting and financial record- it intends to act on the consultant’s Institute grants and cooperative keeping by the subgrantee. These recommendations, as well as two copies agreements under the same terms and responsibilities include: (1) Reviewing Financial Operations. of the consultant’s written report. conditions that apply to Federal The State Supreme Court or its designee grantees. The circulars supplement the C. Scholarship Recipients should be familiar with, and requirements of this section for periodically monitor, its subgrantees’ 1. Scholarship recipients are accounting systems and financial financial operations, records system, responsible for disseminating the recordkeeping and provide additional and procedures. Particular attention information received from the course to guidance on how these requirements should be directed to the maintenance their court colleagues locally and, if may be satisfied. (Circulars may be of current financial data. possible, throughout the State (e.g., by obtained on the OMB Web site at (2) Recording Financial Activities. developing a formal seminar, circulating www.whitehouse.gov/omb.) the written material, or discussing the 1. Office of Management and Budget The subgrantee’s grant award or contract information at a meeting or conference). (OMB) Circular A–21, Cost Principles obligation, as well as cash advances and Recipients also must submit to the for Educational Institutions. other financial activities, should be Institute a certificate of attendance at 2. Office of Management and Budget recorded in the financial records of the the program, an evaluation of the (OMB) Circular A–87, Cost Principles State Supreme Court or its designee in educational program they attended, and for State and Local Governments. summary form. Subgrantee expenditures a copy of the notice of any scholarship 3. Office of Management and Budget should be recorded on the books of the funds received from other sources. A (OMB) Circular A–88, Indirect Cost State Supreme Court OR evidenced by copy of the evaluation must be sent to Rates, Audit and Audit Follow-up at report forms duly filed by the the Chief Justice of the scholarship Educational Institutions. subgrantee. Matching contributions recipient’s State. A State or local 4. Office of Management and Budget provided by subgrantees should jurisdiction may impose additional (OMB) Circular A–102, Uniform likewise be recorded, as should any requirements on scholarship recipients. Administrative Requirements for project income resulting from program 2. To receive the funds authorized by Grants-in-Aid to State and Local operations. a scholarship award, recipients must Governments. (3) Budgeting and Budget Review. The submit a Scholarship Payment Voucher 5. Office of Management and Budget State Supreme Court or its designee (Form S3) together with a tuition (OMB) Circular A–110, Grants and should ensure that each subgrantee statement from the program sponsor, a Agreements with Institutions of Higher prepares an adequate budget as the basis transportation fare receipt (or statement Education, Hospitals and Other Non- for its award commitment. The State of the driving mileage to and from the Profit Organizations. Supreme Court should maintain the recipient’s home to the site of the 6. Office of Management and Budget details of each project budget on file. educational program), and a lodging (OMB) Circular A–122, Cost Principles (4) Accounting for Match. The State receipt. for Non-profit Organizations. Supreme Court or its designee will

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ensure that subgrantees comply with the 1. Timing of Matching Contributions and subgrant awards, applications, and match requirements specified in this Matching contributions need not be required grantee/subgrantee financial Guideline (see section VIII.A.8.). applied at the exact time of the and narrative reports. Personnel and (5) Audit Requirement. The State obligation of Institute funds. Ordinarily, payroll records shall include the time Supreme Court or its designee is the full matching share must be and attendance reports for all required to ensure that subgrantees meet obligated during the award period; individuals reimbursed under a grant, the necessary audit requirements set however, with the written permission of subgrant or contract, whether they are forth by the Institute (see sections K. the Institute, contributions made employed full-time or part-time. Time below and VIII.A.3.) following approval of the grant by the and effort reports are required for (6) Reporting Irregularities. The State Institute’s Board of Directors but before consultants. Supreme Court, its designees, and its the beginning of the grant may be 2. Retention Period subgrantees are responsible for counted as match. Grantees that do not promptly reporting to the Institute the contemplate making matching The three-year retention period starts nature and circumstances surrounding contributions continuously throughout from the date of the submission of the any financial irregularities discovered. the course of a project, or on a task-by- final expenditure report. D. Accounting System task basis, are required to submit a 3. Maintenance schedule within 30 days after the The grantee is responsible for beginning of the project period Grantees and subgrantees are establishing and maintaining an indicating at what points during the expected to see that records of different adequate system of accounting and project period the matching fiscal years are separately identified and internal controls and for ensuring that contributions will be made. If a maintained so that requested an adequate system exists for each of its proposed cash or in-kind match is not information can be readily located. subgrantees and contractors. An fully met, the Institute may reduce the Grantees and subgrantees are also acceptable and adequate accounting award amount accordingly to maintain obligated to protect records adequately system: the ratio of grant funds to matching against fire or other damage. When 1. Properly accounts for receipt of funds stated in the award agreement. records are stored away from the funds under each grant awarded and the grantee’s/subgrantee’s principal office, a 2. Records for Match expenditure of funds for each grant by written index of the location of stored category of expenditure (including All grantees must maintain records records should be on hand, and ready matching contributions and project that clearly show the source, amount, access should be assured. income); and timing of all matching 4. Access 2. Assures that expended funds are contributions. In addition, if a project Grantees and subgrantees must give applied to the appropriate budget has included, within its approved any authorized representative of the category included within the approved budget, contributions which exceed the Institute access to and the right to grant; required matching portion, the grantee must maintain records of those examine all records, books, papers, and 3. Presents and classifies historical documents related to an Institute grant. costs of the grant as required for contributions in the same manner as it budgetary and evaluation purposes; does Institute funds and required G. Project-Related Income matching shares. For all grants made to 4. Provides cost and property controls Records of the receipt and disposition to assure optimal use of grant funds; State and local courts, the State Supreme Court has primary of project-related income must be 5. Is integrated with a system of responsibility for grantee/subgrantee maintained by the grantee in the same internal controls adequate to safeguard compliance with the requirements of manner as required for the project funds the funds and assets covered, check the this section. (See section IX.C.2. above.) that gave rise to the income and must be accuracy and reliability of the reported to the Institute. (See section accounting data, promote operational F. Maintenance and Retention of IX.H.2. below.) The policies governing efficiency, and assure conformance with Records the disposition of the various types of any general or special conditions of the All financial records, including project-related income are listed below. grant; supporting documents, statistical 1. Interest 6. Meets the prescribed requirements records, and all other information for periodic financial reporting of pertinent to grants, subgrants, A State and any agency or operations; and cooperative agreements, or contracts instrumentality of a State, including 7. Provides financial data for under grants, must be retained by each institutions of higher education and planning, control, measurement, and organization participating in a project hospitals, shall not be held accountable evaluation of direct and indirect costs. for at least three years for purposes of for interest earned on advances of E. Total Cost Budgeting and Accounting examination and audit. State Supreme project funds. When funds are awarded Courts may impose record retention and to subgrantees through a State, the Accounting for all funds awarded by maintenance requirements in addition subgrantees are not held accountable for the Institute must be structured and to those prescribed in this section. interest earned on advances of project executed on a total project cost basis. funds. Local units of government and That is, total project costs, including 1. Coverage nonprofit organizations that are grantees Institute funds, State and local matching The retention requirement extends to must refund any interest earned. shares, and any other fund sources books of original entry, source Grantees shall ensure minimum included in the approved project budget documents supporting accounting balances in their respective grant cash serve as the foundation for fiscal transactions, the general ledger, accounts. administration and accounting. Grant subsidiary ledgers, personnel and applications and financial reports payroll records, canceled checks, and 2. Royalties require budget and cost estimates on the related documents and records. Source The grantee/subgrantee may retain all basis of total costs. documents include copies of all grant royalties received from copyrights or

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other works developed under projects or from a continuation grant would be quarterly Financial Status Reports on a from patents and inventions, unless the number 1, the second number 2, etc. grant rather than a project basis. For terms and conditions of the grant c. Termination of Advance and example, the first quarterly report for a provide otherwise. Reimbursement Funding. When a continuation grant award should be grantee organization receiving cash number 1, the second number 2, etc. 3. Registration and Tuition Fees advances from the Institute: 3. Consequences of Non-Compliance Registration and tuition fees may be (1) Demonstrates an unwillingness or With Submission Requirement considered as cash match with the prior inability to attain program or project written approval of the Institute. goals, or to establish procedures that Failure of the grantee to submit Estimates of registration and tuition will minimize the time elapsing required financial and progress reports fees, and any expenses to be offset by between cash advances and may result in suspension or termination the fees, should be included in the disbursements, or cannot adhere to of grant payments. application budget forms and narrative. guideline requirements or special I. Allowability of Costs conditions; 4. Income From the Sale of Grant (2) engages in the improper award and 1. General Products administration of subgrants or contracts; Except as may be otherwise provided If the sale of products occurs during or in the conditions of a particular grant, the project period, the income may be (3) is unable to submit reliable and/ cost allowability is determined in treated as cash match with the prior or timely reports; the Institute may accordance with the principles set forth written approval of the Institute. The terminate advance financing and require in OMB Circulars A–21, Cost Principles costs and income generated by the sales the grantee organization to finance its Applicable to Grants and Contracts with must be reported on the Quarterly operations with its own working capital. Educational Institutions; A–87, Cost Financial Status Reports and Payments to the grantee shall then be Principles for State and Local documented in an auditable manner. made by check to reimburse the grantee Governments; and A–122, Cost Whenever possible, the intent to sell a for actual cash disbursements. In the Principles for Non-profit Organizations. product should be disclosed in the event the grantee continues to be No costs may be recovered to liquidate application or reported to the Institute deficient, the Institute may suspend obligations incurred after the approved in writing once a decision to sell reimbursement payments until the grant period. Circulars may be obtained products has been made. The grantee deficiencies are corrected. on the OMB Web site at must request approval to recover its d. Principle of Minimum Cash on www.whitehouse.gov/omb. product development, reproduction, Hand. Grantees should request funds 2. Costs Requiring Prior Approval and dissemination costs as specified in based upon immediate disbursement section VIII.A.11.b. requirements. Grantees should time a. Pre-agreement Costs. The written their requests to ensure that cash on prior approval of the Institute is 5. Other hand is the minimum needed for required for costs considered necessary Other project income shall be treated disbursements to be made immediately but which occur prior to the start date in accordance with disposition or within a few days. of the project period. b. Equipment. Grant funds may be instructions set forth in the grant’s terms 2. Financial Reporting and conditions. used to purchase or lease only that a. General Requirements. To obtain equipment essential to accomplishing H. Payments and Financial Reporting financial information concerning the the goals and objectives of the project. Requirements use of funds, the Institute requires that The written prior approval of the 1. Payment of Grant Funds grantees/subgrantees submit timely Institute is required when the amount of reports for review. automated data processing (ADP) The procedures and regulations set b. Two copies of the Financial Status equipment to be purchased or leased forth below are applicable to all Report are required from all grantees, exceeds $10,000 or software to be Institute grant funds and grantees. other than scholarship recipients, for purchased exceeds $3,000. a. Request for Advance or each active quarter on a calendar- c. Consultants. The written prior Reimbursement of Funds. Grantees will quarter basis. This report is due within approval of the Institute is required receive funds on a ‘‘check-issued’’ basis. 30 days after the close of the calendar when the rate of compensation to be Upon receipt, review, and approval of a quarter. It is designed to provide paid a consultant exceeds $300 a day. Request for Advance or Reimbursement financial information relating to Institute funds may not be used to pay by the Institute, a check will be issued Institute funds, State and local matching a consultant more than $900 per day. directly to the grantee or its designated shares, project income, and any other d. Budget Revisions. Budget revisions fiscal agent. A request must be limited sources of funds for the project, as well among direct cost categories that to the grantee’s immediate cash needs. as information on obligations and (i) transfer grant funds to an unbudgeted The Request for Advance or outlays. A copy of the Financial Status cost category or (ii) individually or Reimbursement, along with the Report, along with instructions for its cumulatively exceed five percent (5%) instructions for its preparation, will be preparation, is included in each official of the approved original budget or the included in the official Institute award Institute Award package. If a grantee most recently approved revised budget package. requests substantial payments for a requires prior Institute approval. See b. Continuation Grants. For purposes project prior to the completion of a section X.A.1. of submitting Requests for Advance or given quarter, the Institute may request Reimbursement, recipients of a brief summary of the amount 3. Travel Costs continuation grants should treat each requested, by object class, to support the Transportation and per diem rates grant as a new project and number the Request for Advance or Reimbursement. must comply with the policies of the requests accordingly (i.e., on a grant c. Additional Requirements for grantee. If the grantee does not have an rather than a project basis). For Continuation Grants. Grantees receiving established written travel policy, then example, the first request for payment continuation grants should number their travel rates must be consistent with

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those established by the Institute or the prior to the month that the indirect cost recommendations by designating Federal Government. Institute funds proposal is received. officials responsible for: follow-up; may not be used to cover the maintaining a record of the actions J. Procurement and Property transportation or per diem costs of a taken on recommendations and time Management Standards member of a national organization to schedules; responding to and acting on attend an annual or other regular 1. Procurement Standards audit recommendations; and submitting meeting of that organization. For State and local governments, the periodic reports to the Institute on 4. Indirect Costs Institute has adopted the standards set recommendations and actions taken. forth in Attachment O of OMB Circular These are costs of an organization that 3. Consequences of Non-Resolution of A–102. Institutions of higher education, are not readily assignable to a particular Audit Issues project but are necessary to the hospitals, and other non-profit organizations will be governed by the Ordinarily, the Institute will not make operation of the organization and the a subsequent grant award to an performance of the project. The cost of standards set forth in Attachment O of OMB Circular A–110. applicant that has an unresolved audit operating and maintaining facilities, report involving Institute awards. depreciation, and administrative 2. Property Management Standards Failure of the grantee to resolve audit salaries are examples of the types of The property management standards questions may also result in the costs that are usually treated as indirect as prescribed in Attachment N of OMB suspension or termination of payments costs. Although the Institute’s policy Circulars A–102 and A–110 apply to all for active Institute grants to that requires all costs to be budgeted Institute grantees and subgrantees organization. directly, it will accept indirect costs if except as provided in section VIII.A.18. a grantee has an indirect cost rate L. Close-Out of Grants All grantees/subgrantees are required to approved by a Federal agency as set be prudent in the acquisition and 1. Grantee Close-Out Requirements forth below. However, recoverable management of property with grant indirect costs are limited to no more Within 90 days after the end date of funds. If suitable property required for than 75% of a grantee’s direct personnel the grant or any approved extension the successful execution of projects is costs (salaries plus fringe benefits). thereof (see section IX.L.2. below), the already available within the grantee or Grantees may apply unrecoverable following documents must be submitted subgrantee organization, expenditures of indirect costs to meet their required to the Institute by grantees (other than grant funds for the acquisition of new matching contributions, including the scholarship recipients): property will be considered required level of cash match. See a. Financial Status Report. The final unnecessary. sections III.L. and VI.A.4.d.(11). report of expenditures must have no a. Approved Plan Available. K. Audit Requirements unliquidated obligations and must (1) A copy of an indirect cost rate indicate the exact balance of agreement or allocation plan approved 1. Implementation unobligated funds. Any unobligated/ for a grantee during the preceding two Each recipient of a Project or unexpended funds will be deobligated years by any Federal granting agency on Continuation Grant must provide for an from the award by the Institute. Final the basis of allocation methods annual fiscal audit. This requirement payment requests for obligations substantially in accord with those set also applies to a State or local court incurred during the award period must forth in the applicable cost circulars receiving a subgrant from the State be submitted to the Institute prior to the must be submitted to the Institute. Supreme Court. The audit may be of the end of the 90-day close-out period. (2) Where flat rates are accepted in entire grantee or subgrantee Grantees on a check-issued basis, who lieu of actual indirect costs, grantees organization or of the specific project have drawn down funds in excess of may not also charge expenses normally funded by the Institute. Audits their obligations/expenditures, must included in overhead pools, e.g., conducted in accordance with the return any unused funds as soon as it is accounting services, legal services, Single Audit Act of 1984 and OMB determined that the funds are not building occupancy and maintenance, Circular A–128, or OMB Circular A– required. In no case should any unused etc., as direct costs. 133, will satisfy the requirement for an funds remain with the grantee beyond b. Establishment of Indirect Cost annual fiscal audit. The audit must be the submission date of the final Rates. To be reimbursed for indirect conducted by an independent Certified Financial Status Report. costs, a grantee must first establish an Public Accountant, or a State or local b. Final Progress Report. This report appropriate indirect cost rate. To do agency authorized to audit government should describe the project activities this, the grantee must prepare an agencies. Grantees must send two copies during the final calendar quarter of the indirect cost rate proposal and submit it of the audit report to the Institute. project and the close-out period, to the Institute within three months Grantees that receive funds from a including to whom project products after the start of the grant period to Federal agency and satisfy audit have been disseminated; provide a assure recovery of the full amount of requirements of the cognizant Federal summary of activities during the entire allowable indirect costs. The rate must agency must submit two copies of the project; specify whether all the be developed in accordance with audit report prepared for that Federal objectives set forth in the approved principles and procedures appropriate agency to the Institute in order to satisfy application or an approved adjustment to the type of grantee institution the provisions of this section. have been met and, if any of the involved as specified in the applicable objectives have not been met, explain OMB Circular. 2. Resolution and Clearance of Audit why not; and discuss what, if anything, c. No Approved Plan. If an indirect Reports could have been done differently that cost proposal for recovery of indirect Timely action on recommendations might have enhanced the impact of the costs is not submitted to the Institute by responsible management officials is project or improved its operation. within three months after the start of the an integral part of the effectiveness of an These reporting requirements apply at grant period, indirect costs will be audit. Each grantee must have policies the conclusion of every grant other than irrevocably disallowed for all months and procedures for acting on audit a scholarship, even when the project

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will continue under a Continuation assigned to a key project staff position F. Temporary Absence of the Project Grant. (see section VIII.A.2.). Director 8. A change in or temporary absence Whenever an absence of the project 2. Extension of Close-out Period of the person responsible for managing director is expected to exceed a Upon the written request of the and reporting on the grant’s finances. grantee, the Institute may extend the 9. A change in the name of the grantee continuous period of one month, the close-out period to assure completion of organization. plans for the conduct of the project the grantee’s close-out requirements. 10. A transfer or contracting out of director’s duties during such absence Requests for an extension must be grant-supported activities (see H. must be approved in advance by the submitted at least 14 days before the below). Institute. This information must be end of the close-out period and must 11. A transfer of the grant to another provided in a letter signed by an explain why the extension is necessary recipient. authorized representative of the grantee/ and what steps will be taken to assure 12. Preagreement costs (see section subgrantee at least 30 days before the that all the grantee’s responsibilities IX.I.2.a.). departure of the project director, or as will be met by the end of the extension 13. The purchase of automated data soon as it is known that the project period. processing equipment and software (see director will be absent. The grant may section IX.I.2.b.). be terminated if arrangements are not X. Grant Adjustments 14. Consultant rates (see section approved in advance by the Institute. All requests for programmatic or IX.I.2.c.). 15. A change in the nature or number G. Withdrawal of/Change in Project budgetary adjustments requiring of the products to be prepared or the Director Institute approval must be submitted by manner in which a product would be the project director in a timely manner If the project director relinquishes or distributed. (ordinarily 30 days prior to the expects to relinquish active direction of implementation of the adjustment being B. Requests for Grant Adjustments the project, the Institute must be notified immediately. In such cases, if requested). All requests for changes All grantees must promptly notify from the approved application will be the grantee/subgrantee wishes to their SJI program managers, in writing, terminate the project, the Institute will carefully reviewed for both consistency of events or proposed changes that may with this Guideline and the forward procedural instructions upon require adjustments to the approved notification of such intent. If the grantee enhancement of grant goals and project design. In requesting an objectives. wishes to continue the project under the adjustment, the grantee must set forth direction of another individual, a A. Grant Adjustments Requiring Prior the reasons and basis for the proposed statement of the candidate’s Written Approval adjustment and any other information qualifications should be sent to the the program manager determines would Institute for review and approval. The The following grant adjustments help the Institute’s review. require the prior written approval of the grant may be terminated if the Institute: C. Notification of Approval/Disapproval qualifications of the proposed 1. Budget revisions among direct cost If the request is approved, the grantee individual are not approved in advance categories that (a) transfer grant funds to will be sent a Grant Adjustment signed by the Institute. an unbudgeted cost category or (b) by the Executive Director or his or her H.Transferring or Contracting Out of individually or cumulatively exceed designee. If the request is denied, the Grant-Supported Activities five percent (5%) of the approved grantee will be sent a written original budget or the most recently explanation of the reasons for the No principal activity of a grant- approved revised budget. See section denial. supported project may be transferred or IX.I.2.d. contracted out to another organization For Continuation Grants, funds from D. Changes in the Scope of the Grant without specific prior approval by the the original award may be used during Major changes in scope, duration, Institute. All such arrangements must be the new grant period and funds awarded training methodology, or other formalized in a contract or other written through a continuation grant may be significant areas must be approved in agreement between the parties involved. used to cover project-related advance by the Institute. A grantee may Copies of the proposed contract or expenditures incurred during the make minor changes in methodology, agreement must be submitted for prior original award period, with the prior approach, or other aspects of the grant approval of the Institute at the earliest written approval of the Institute. to expedite achievement of the grant’s possible time. The contract or agreement 2. A change in the scope of work to objectives with subsequent notification must state, at a minimum, the activities be performed or the objectives of the of the SJI program manager. to be performed, the time schedule, the project (see D. below in this section). policies and procedures to be followed, E. Date Changes 3. A change in the project site. the dollar limitation of the agreement, 4. A change in the project period, A request to change or extend the and the cost principles to be followed in such as an extension of the grant period grant period must be made at least 30 determining what costs, both direct and and/or extension of the final financial or days in advance of the end date of the indirect, will be allowed. The contract progress report deadline (see E. below). grant. A revised task plan should or other written agreement must not 5. Satisfaction of special conditions, if accompany a request for a no-cost affect the grantee’s overall responsibility required. extension of the grant period, along with for the direction of the project and 6. A change in or temporary absence a revised budget if shifts among budget accountability to the Institute. of the project director (see F. and G. categories will be needed. A request to State Justice Institute Board of below). change or extend the deadline for the 7. The assignment of an employee or final financial report or final progress Directors consultant to a key staff position whose report must be made at least 14 days in Robert A. Miller, Chairman, Chief qualifications were not described in the advance of the report deadline (see Justice (ret.), Supreme Court of application, or a change of a person section IX.L.2.). South Dakota, Pierre, SD.

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Joseph F. Baca, Vice-Chairman, Chief Colorado House, Room 316, Indianapolis, IN 46204, (317) 232–2557, [email protected]. Justice (ret.), New Mexico Supreme Supreme Court Library Court, Albuquerque, NM. Iowa Sandra A. O’Connor, Secretary, States Ms. Linda Gruenthal, Deputy Supreme Court Law Librarian, 2 East 14th Avenue, Administrative Office of the Court Attorney of Baltimore County, Denver, CO 80203, (303) 837–3720, Towson, MD. [email protected]. Dr. Jerry K. Beatty, Director of Judicial Keith McNamara, Esq., Executive Branch Education, Iowa Judicial Branch, Committee Member, McNamara & Connecticut Iowa Judicial Branch Building, 1111 East McNamara, Columbus, OH. State Library Court Avenue, Des Moines, IA 50319, (515) Terrence B. Adamson, Esq., Executive Ms. Denise D. Jernigan, Law Librarian, 242–0190, [email protected]. Vice-President, The National Connecticut State Library, 231 Capitol Kansas Geographic Society, Washington, Avenue, Hartford, CT 06106, (860) 757–6598, D.C. [email protected]. Supreme Court Library Robert N. Baldwin, State Court Delaware Mr. Fred Knecht, Law Librarian, Kansas Administrator, Supreme Court of Supreme Court Library, Kansas Judicial Virginia, Richmond, VA. Administrative Office of the Courts Center, 301 S.W. 10th Avenue, Topeka, KS Carlos R. Garza, Esq., Administrative Mr. Michael E. McLaughlin, Deputy 66612, (785) 296–3257, [email protected]. Judge (ret.), Round Rock, TX. Director, Administrative Office of the Courts, Sophia H. Hall, Administrative Carvel State Office Building, 820 North Kentucky Presiding Judge, Circuit Court of French Street, 11th Floor, P.O. Box 8911, State Law Library Wilmington, DE 19801, (302) 577–8481. Cook County, Chicago, IL. Ms. Vida Vitagliano, Cataloging and Tommy Jewell, Presiding Children’s District of Columbia Research Librarian, Kentucky Supreme Court Court Judge, Albuquerque, NM. Library, 700 Capitol Avenue, Suite 200, Executive Office, District of Columbia Courts Arthur A. McGiverin, Chief Justice (ret.), Frankfort, KY 40601, (502) 564–4185, Supreme Court of Iowa, Ottumwa, Ms. Anne B. Wicks, Executive Officer, [email protected]. IA. District of Columbia Courts, 500 Indiana Kathy Schwartz, Acting Executive Avenue, NW., Suite 1500, Washington, DC Louisiana 20001, (202) 879–1700, [email protected]. Director (ex officio). State Law Library Kathy Schwartz, Florida Ms. Carol Billings, Director, Louisiana Law Acting Executive Director. Administrative Office of the Courts Library, Louisiana Supreme Court Building, 400 Royal Street, New Orleans, LA 70130, Ms. Elisabeth H. Goodner, State Courts Appendix A—SJI Libraries: Designated (504) 310–2401, [email protected]. Sites and Contacts Administrator, Office of the State Courts Administrator, Florida Supreme Court, Maine Alabama Supreme Court Building, 500 South Duval Street, Tallahassee, FL 32399, (850) 922– State Law and Legislative Reference Library Supreme Court Library 5081, [email protected]. Ms. Lynn E. Randall, State Law Librarian, Mr. Timothy A. Lewis, State Law Librarian, 43 State House Station, Augusta, ME 04333, Alabama Supreme Court, Judicial Building, Georgia (207) 287–1600, 300 Dexter Avenue, Montgomery, AL 36104, Administrative Office of the Courts [email protected]. (334) 242–4347, [email protected]. Mr. David Ratley, Director, Administrative Maryland Alaska Office of the Courts, 244 Washington Street, Anchorage Law Library S.W., Suite 300, Atlanta, GA 30334, (404) State Law Library 656–5171, [email protected]. Ms. Cynthia S. Fellows, State Law Mr. Michael S. Miller, Director, Maryland Librarian, Alaska State Court Law Library, Hawaii State Law Library, Court of Appeals Building, 361 Rowe Boulevard, Annapolis, MD 21401, 303 K Street, Anchorage, AK 99501, (907) Supreme Court Library 264–0583, [email protected]. (410) 260–1430, Ms. Ann Koto, State Law Librarian, The [email protected]. Arizona Supreme Court Law Library, 417 South King Massachusetts Supreme Court Library St., Room 119, Honolulu, HI 96813, (808) 539–4964, [email protected]. Ms. Lani Orosco, Staff Assistant, Arizona Middlesex Law Library Supreme Court, Staff Attorney’s Office, Idaho Ms. Sandra Lindheimer, Librarian, Library, 1501 W. Washington, Suite 445, AOC Judicial Education Library/State Law Middlesex Law Library, Superior Court Phoenix, AZ 85007, (602) 542–5028, Library House, 40 Thorndike Street, Cambridge, MA [email protected]. 02141, (617) 494–4148. Mr. Richard Visser, State Law Librarian, Arkansas Idaho State Law Library, Supreme Court Michigan Administrative Office of the Courts Building, 451 West State St., Boise, ID 83720, (208) 334–3316, [email protected]. Michigan Judicial Institute Mr. James D. Gingerich, Director, Dawn F. McCarty, Director, Michigan Administrative Office of the Courts, Supreme Illinois Judicial Institute, P.O. Box 30205, Lansing, Court of Arkansas, Justice Building, 625 MI 48909, (517) 373–7509, Marshall Street, Little Rock, AR 72201, (501) Supreme Court Library 682–9400, [email protected]. Ms. Brenda Larison, Supreme Court of [email protected]. Illinois Library, 200 East Capitol Avenue, Minnesota California Springfield, IL 62701–1791, (217) 782–2425, Administrative Office of the Courts [email protected]. State Law Library (Minnesota Judicial Center) Mr. William C. Vickrey, Administrative Indiana Ms. Barbara L. Golden, State Law Director of the Courts, Administrative Office Librarian, G25 Minnesota Judicial Center, 25 of the Courts, 455 Golden Gate Avenue, San Supreme Court Library Rev. Dr. Martin Luther King Jr. Boulevard, St. Francisco, CA 94102, (415) 865–4235, Ms. Terri L. Ross, Supreme Court Paul, MN 55155, (612) 297–2089, [email protected]. Librarian, Supreme Court Library, State [email protected].

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Mississippi Northern Mariana Islands Tennessee Mississippi Judicial College Supreme Court of the Northern Mariana Tennessee State Law Library Hon. Leslie G. Johnson, Executive Director, Islands Hon. Cornelia A. Clark, Executive Director, Mississippi Judicial College, P.O. Box 8850, Ms. Margarita M. Palacios, Director of Administrative Office of the Courts, 511 University, MS 38677, (662) 915–5955, Courts, Supreme Court of the Commonwealth Union Street, Suite 600, Nashville, TN 37219, [email protected]. of the Northern Mariana Islands, P.O. Box (615) 741–2687, [email protected]. 502165, Saipan, MP 96950, (670) 235–9700, Montana Texas [email protected]. State Law Library State Law Library Ohio Ms. Judith Meadows, State Law Librarian, Mr. Marcelino A. Estrada, Director, State State Law Library of Montana, P.O. Box Supreme Court Library Law Library, P.O. Box 12367, Austin, TX 203004, Helena, MT 59620, (406) 444–3660, Mr. Ken Kozlowski, Director, Law Library, 78711, (512) 463–1722, [email protected]. Supreme Court of Ohio, 65 South Front [email protected]. Street, 11th Floor, Columbus, OH 43215– Nebraska U.S. Virgin Islands 3431, (614) 387–9666, Administrative Office of the Courts [email protected]. Library of the Territorial Court of the Virgin Mr. Frank E. Goodroe, State Court Islands (St. Thomas) Oklahoma Administrator, Administrative Office of the Librarian, The Library, Territorial Court of Courts/Probation, State Capitol Building, Administrative Office of the Courts the Virgin Islands, Post Office Box 70, Room 1220, Post Office Box 98910, Lincoln, Mr. Howard W. Conyers, State Court Charlotte Amalie, St. Thomas, Virgin Islands NE 68509–8910, (402) 471–3730, Administrator, Administrative Office of the 00804. [email protected]. Courts, 1915 North Stiles Avenue, Suite 305, Utah Nevada Oklahoma City, OK 73105, (405) 521–2450, [email protected]. Utah State Judicial Administration Library National Judicial College Ms. Debbie Christiansen, State Judicial Mr. Randall Snyder, Law Librarian, Oregon Administration Library, Administrative National Judicial College, Judicial College Administrative Office of the Courts Building, MS 358, Reno, NV 89557, (775) Office of the Courts, 450 South State Street, 327–8278, [email protected]. Ms. Kingsley W. Click, State Court P.O. Box 140241, Salt Lake City, UT 84114– Administrator, Oregon Judicial Department, 0241, (801) 578–3807, New Hampshire Supreme Court Building, 1163 State Street, [email protected]. Salem, OR 97301, (503) 986–5500, New Hampshire Law Library Vermont [email protected]. Ms. Mary Searles, Technical Services Law Supreme Court of Vermont Librarian, New Hampshire Law Library, Pennsylvania Mr. Paul J. Donovan, Law Librarian, Supreme Court Building, One Noble Drive, State Library of Pennsylvania Concord, NH 03301–6160, (603) 271–3777. Vermont Department of Libraries, 109 State Ms. Barbara Miller, Collection Management Street, Pavilion Office Building, Montpelier, New Jersey Librarian, State Library of Pennsylvania, VT 05609, (802) 828–3268, New Jersey State Library Bureau of State Library, 333 Market Street, [email protected]. Harrisburg, PA 17126–1745, (717) 787–5718, Virginia Ms. Marjorie Garwig, Supervising Law [email protected]. Librarian, New Jersey State Law Library, 185 Administrative Office of the Courts West State Street, P.O. Box 520, Trenton, NJ Puerto Rico 08625–0250, (609) 292–6230. Mr. Robert N. Baldwin, State Court Office of Court Administration Administrator, Supreme Court of Virginia, New Mexico Alfredo Rivera-Mendoza, Esq., Director, Educational Services Department, 100 North Supreme Court Library Area of Planning and Management, Office of Ninth Street, 3rd Floor, Richmond, VA Court Administration, P.O. Box 917, Hato 23219, (804) 786–6455, Mr. Thaddeus Bejnar, Librarian, Supreme [email protected]. Court Library, Post Office Drawer L, Santa Fe, Rey, PR 00919. NM 87504, (505) 827–4850. Rhode Island Washington New York Roger Williams University Washington State Law Library Supreme Court Library Ms. Gail Winson, Director of Law Library/ Ms. Kay Newman, State Law Librarian, Ms. Barbara Briggs, Law Librarian, Associate Professor of Law, Roger Williams Washington State Law Library, Temple of Syracuse Supreme Court Law Library, 401 University, School of Law Library, 10 Justice, P.O. Box 40751, Olympia, WA Montgomery Street, Syracuse, NY 13202, Metacom Avenue, Bristol, RI 02809, (401) 98504–0751, (360) 357–2136, (315) 671–1150, [email protected]. 254–4531, [email protected]. [email protected]. North Carolina South Carolina West Virginia Supreme Court Library Coleman Karesh Law Library (University of Supreme Court of Appeals Library South Carolina School of Law) Mr. Thomas P. Davis, Librarian, North Ms. Kaye Maerz, State Law Librarian, West Carolina Supreme Court Library, 500 Justice Mr. Steve Hinckley, Director, Coleman Virginia Supreme Court of Appeals Library, Building, 2 East Morgan Street, Raleigh, NC Karesh Law Library, University of South 1900 Kanawha Boulevard East, Building 1, 27601, (919) 733–3425, [email protected]. Carolina, Main and Green Streets, Columbia, Room E–404, Charleston, WV 25305, (304) SC 29208, (803) 777–5944, 558–2607, [email protected]. North Dakota [email protected]. Wisconsin Supreme Court Library South Dakota Ms. Marcella Kramer, Assistant Law State Law Library Librarian, Supreme Court Law Library, 600 State Law Library Ms. Jane Colwin, State Law Librarian, State East Boulevard Avenue, Dept. 182, 2nd Floor, Librarian, South Dakota State Law Library, Law Library, 120 M.L.K. Jr. Boulevard, Judicial Wing, Bismarck, ND 58505–0540, 500 East Capitol, Pierre, South Dakota 57501, Madison, WI 53703, (608) 261–2340, (701) 328–2229, [email protected]. (605) 773–4898. [email protected].

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Wyoming Improving Public Confidence in the Courts National Center for State Courts: SJI–87– 056). Wyoming State Law Library Mississippi Task Force on Gender Fairness in the Courts (Mississippi Administrative A Manual for Workshops on Processing Ms. Kathy Carlson, Law Librarian, Office of the Courts: SJI–00–108). Felony Dispositions in Limited Jurisdiction Wyoming State Law Library, Supreme Court Analysis of the Juror Debriefing Project (King Courts (National Center for State Courts: Building, 2301 Capitol Avenue, Cheyenne, County, WA, Superior Court: SJI–00–049). SJI–90–052). WY 82002, (307) 777–7509, Managerial Budgeting in the Courts; [email protected]. Improving the Court’s Response to Family Performance Appraisal in the Courts; Violence Managing Change in the Courts; Court National New Hampshire Fatality Reviews (New Automation Design; Case Management for Trial Judges; Trial Court Performance American Judicature Society Hampshire Administrative Office of the Courts: SJI–99–142). Standards (Institute for Court Ms. Deborah Sulzbach, Acquisitions Management/National Center for State Librarian, Drake University Law Library, Education and Training for Judges and Courts: SJI–91–043). Opperman Hall, 2507 University Avenue, Other Court Personnel Strengthening Rural Courts of Limited Des Moines, IA 50311–4505, (515) 271–3784, Iowa Supreme Court Advisory Committee on Jurisdiction and Team Training for Judges e-mail: [email protected]. Judicial Branch Education (Iowa State and Clerks (Rural Justice Center: SJI–90– Court Administrator’s Office: SJI–01–200). 014, SJI–91–082). National Center for State Courts Integrating Trial Management and Caseflow Ms. Joan Cochet, Library Specialist, Appendix C—Illustrative List of Model Management (Justice Management National Center for State Courts, 300 Curricula Institute: SJI–93–214). Newport Avenue, Williamsburg, VA 23185– The following list includes examples of Leading Organizational Change (California 4147, (757) 259–1826, [email protected]. model SJI-supported curricula that State Administrative Office of the Courts: SJI– judicial educators may wish to adapt for 94–068). JERITT presentation in education programs for Managing Mass Tort Cases (National Judicial Dr. Maureen E. Conner, Executive Director, judges and other court personnel with the College: SJI–94–141). The JERITT Project, Michigan State assistance of a Judicial Branch Education Employment Responsibilities of State Court University, 1407 S. Harrison Road, Suite 330 Technical Assistance Grant. Please refer to Judges (National Judicial College: SJI–95– Nisbet, East Lansing, MI 48823–5239, (517) section VI.C. for information on submitting a 025). 353–8603, (517) 432–3965 (fax), letter application for a Judicial Branch Caseflow Management; Resources, Budget, [email protected], Web site: http:// Education Technical Assistance Grant. A list and Finance; Visioning and Strategic jeritt.msu.edu. of all SJI-supported education projects is Planning; Leadership; Purposes and available on the SJI Web site (http:// Responsibilities of Courts; Information Appendix B—Illustrative List of www.statejustice.org). Please also check with Management Technology; Human Technical Assistance Grants the JERITT project (http://jeritt.msu.edu or Resources Management; Education, (517) 353–8603) and your State SJI- Training, and Development; Public The following list presents examples of the designated library (see Appendix A) for more Information and the Media from ‘‘NACM types of technical assistance for which State information about these and other SJI- Core Competency Curriculum Guidelines’’ and local courts can request Institute supported curricula that may be appropriate (National Association for Court funding. Please check with the JERITT for in-State adaptation. Management: SJI–96–148). project (http://jeritt.msu.org or (517) 353– Alternative Dispute Resolution Dealing with the Common Law Courts: A 8603) for more information about these and Model Curriculum for Judges and Court other SJI-supported technical assistance Judicial Settlement Manual (National Judicial Staff (Institute for Court Management/ College: SJI–89–089). projects. National Center for State Courts: SJI–96– Improving the Quality of Dispute Resolution 159). Application of Technology (Ohio State University College of Law: SJI– Caseflow Management from ‘‘Innovative 93–277). Technology Plan (Office of the South Dakota Educational Programs for Judges and Court Comprehensive ADR Curriculum for Judges Managers’’ (Justice Management Institute: State Court Administrator: SJI–99–066). (American Bar Association: SJI–95–002). SJI–98–041). Children and Families in Court Domestic Violence and Custody Mediation (American Bar Association: SJI–96–038). Courts and Communities Expanded Unified Family Court (Ventura County, CA, Superior Court: SJI–01–122). Court Coordination Reporting on the Courts and the Law (American Judicature Society: SJI–88–014). Trial Court Performance Standards for the Bankruptcy Issues for State Trial Court Unified Family Court of Delaware (Family Judges (American Bankruptcy Institute: Victim Rights and the Judiciary: A Training Court of Delaware: SJI–98–205). SJI–91–027). and Implementation Project (National Intermediate Sanctions Handbook: Organization for Victim Assistance: SJI– Court Planning, Management, and Financing Experiences and Tools for Policymakers 89–083). Job Classification and Pay Study of the New (Center for Effective Public Policy: IAA–88- National Guardianship Monitoring Project: Hampshire Courts (New Hampshire NIC–001). Trainer and Trainee’s Manual (American Association of Retired Persons: SJI–91– Administrative Office of the Courts: SJI– Regional Conference Cookbook: A Practical 013). 98–011). Guide to Planning and Presenting a Access to Justice: The Impartial Jury and the A Model for Building and Institutionalizing Regional Conference on State-Federal Judicial Relationships (U.S. Court of Justice System and When Implementing the Judicial Branch Strategic Planning (12th Court-Related Needs of Older People and Judicial Circuit, Sarasota, FL: SJI–98–266). Appeals for the 9th Circuit: SJI–92–087). Bankruptcy Issues and Domestic Relations Persons with Disabilities: An Instructional Strategic Planning (Fourth Judicial District Cases (American Bankruptcy Institute: SJI– Guide (National Judicial College: SJI–91– Court, Hennepin County, MN: SJI–99–221). 96–175). 054). Differentiated Case Management for the You Are the Court System: A Focus on Improvement of Civil Case Processing in Court Management Customer Service (Alaska Court System: the Trial Courts of Texas (Texas Office of Managing Trials Effectively: A Program for SJI–94–048). Court Administration: SJI–99–222). State Trial Judges (National Center for Serving the Public: A Curriculum for Court State Courts/National Judicial College: SJI– Employees (American Judicature Society: Dispute Resolution and the Courts 87–066/067, SJI–89–054/055, SJI–91–025/ SJI–96–040). Evaluating the New Mexico Court of Appeals 026). Courts and Their Communities: Local Mediation Program (New Mexico Supreme Caseflow Management Principles and Planning and the Renewal of Public Trust Court: SJI–00–122). Practices (Institute for Court Management/ and Confidence: A California Statewide

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Conference (California Administrative (Family Violence Prevention Fund: SJI–87– New Employee Orientation Facilitators Guide Office of the Courts: SJI–98–008). 061, SJI–89–070, SJI–91–055). (Minnesota Supreme Court: SJI–92–155). Charting the Course of Public Trust and Domestic Violence: A Curriculum for Rural Magistrates Correspondence Course (Alaska Confidence in Our Courts (Mid-Atlantic Courts (Rural Justice Center: SJI–88–081). Court System: SJI–92–156). Association for Court Management: SJI–98– Judicial Training Materials on Spousal Bench Trial Skills and Demeanor: An 208). Support; Judicial Training Materials on Interactive Manual (National Judicial Trial Court Judicial Leadership Program: Child Custody and Visitation (Women College: SJI 94–058). Judges’ Fund for Justice: SJI–89–062). Judges and Court Administrators Serving Ethical Issues in the Election of Judges Understanding Sexual Violence: The Judicial the Courts and Community (National (National Judicial College: SJI–94–142). Center for State Courts: SJI–98–268). Response to Stranger and Nonstranger Rape and Sexual Assault (National Judicial Caseflow Management; Resources, Budget, Public Trust and Confidence (Arizona Courts and Finance; Visioning and Strategic Association: SJI–99–063). Education Program: SJI–92–003, SJI–98– 133 [video curriculum]). Planning; Leadership; Purposes and Diversity, Values, and Attitudes Domestic Violence & Children: Resolving Responsibilities of Courts; Information Management Technology; Human Troubled Families, Troubled Judges Custody and Visitation Disputes (Family (Brandeis University: SJI–89–071). Violence Prevention Fund: SJI–93–255). Resources Management; Education, The Crucial Nature of Attitudes and Values Adjudicating Allegations of Child Sexual Training, and Development; Public in Judicial Education (National Council of Abuse When Custody Is in Dispute Information and the Media from ‘‘NACM (National Judicial Education Program: SJI Juvenile and Family Court Judges: SJI–90– Core Competency Curriculum Guidelines’’ 95–019). 058). (National Association for Court Handling Cases of Elder Abuse: Management: SJI–96–148). Enhancing Diversity in the Court and Interdisciplinary Curricula for Judges and Community (Institute for Court Innovative Approaches to Improving Court Staff (American Bar Association: SJI– Competencies of General Jurisdiction Management/National Center for State 93–274). Courts: SJI–91–043). Judges (National Judicial College: SJI–98– Cultural Diversity Awareness in Nebraska Health and Science 001). Courts from Native American Alternatives A Judge’s Deskbook on the Basic Caseflow Management from ‘‘Innovative to Incarceration Project (Nebraska Urban Philosophies and Methods of Science: Educational Programs for Judges and Court Indian Health Coalition: SJI–93–028). Model Curriculum (University of Nevada, Managers’’ (Justice Management Institute: Race Fairness and Cultural Awareness Reno: SJI–97–030). SJI–98–041. Faculty Development Workshop (National Juveniles and Families in Court Judicial College: SJI–93–063). Judicial Education for Appellate Court A Videotape Training Program in Ethics and Judges Fundamental Skills Training Curriculum for Professional Conduct for Nonjudicial Court Career Writing Program for Appellate Judges Juvenile Probation Officers (National Personnel and The Ethics Fieldbook: Tool (American Academy of Judicial Education: Council of Juvenile and Family Court For Trainers (American Judicature Society: SJI–88–086). Judges: SJI–90–017). SJI–93–068). Civil and Criminal Procedural Innovations Child Support Across State Lines: The Court Interpreter Training Course for Spanish for Appellate Courts (National Center for Uniform Interstate Family Support Act Interpreters (International Institute of State Courts: SJI–94–002). from Uniform Interstate Family Support Buffalo: SJI–93–075). Judicial Branch Education: Faculty and Act: Development and Delivery of a Doing Justice: Improving Equality Before the Program Development Judicial Training Curriculum (ABA Center Law Through Literature-Based Seminars The Leadership Institute in Judicial on Children and the Law: SJI 94–321). for Judges and Court Personnel (Brandeis Juvenile Justice at the Crossroads: Literature- University: SJI–94–019). Education and The Advanced Leadership Institute in Judicial Education (University Based Seminars for Judges, Court Multi-Cultural Training for Judges and Court of Memphis: SJI–91–021). Personnel, and Community Leaders Personnel (St. Petersburg Junior College: ‘‘Faculty Development Instructional (Brandeis University: SJI–99–150). SJI–95–006). Program’’ from Curriculum Review Ethical Standards for Judicial Settlement: Strategic and Futures Planning (National Judicial College: SJI–91–039). Developing a Judicial Education Module Resource Manual and Training for Judicial Minding the Courts into the Twentieth (American Judicature Society: SJI–95–082). Education Mentors (National Association Century (Michigan Judicial Institute: SJI– Code of Ethics for the Court Employees of of State Judicial Educators: SJI–95–233). 89–029). California (California Administrative Institute for Faculty Excellence in Judicial An Approach to Long-Range Strategic Office of the Courts: SJI 95–245). Education (National Council of Juvenile Planning in the Courts (Center for Public Workplace Sexual Harassment Awareness and Family Court Judges: SJI–96–042; Policy Studies: SJI–91–045). and Prevention (California Administrative University of Memphis: SJI–01–202). Office of the Courts: SJI 96–089). Substance Abuse Orientation, Mentoring, and Continuing Just Us On Justice: A Dialogue on Diversity Good Times, Bad Times: Drugs, Youth, and Issues Facing Virginia Courts (Virginia Professional Education of Judges and Court Personnel the Judiciary (Professional Development Supreme Court: SJI–96–150). and Training Center, Inc.: SJI–91–095). When Bias Compounds: Insuring Equal Legal Institute for Special and Limited Gaining Momentum: A Model Curriculum for Treatment for Women of Color in the Jurisdiction Judges (National Judicial Drug Courts (Florida Office of the State Courts (National Judicial Education College: SJI–89–043, SJI–91–040). Courts Administrator: SJI–94–291). Program: SJI 96–161). Pre-Bench Training for New Judges Judicial Response to Substance Abuse: When Judges Speak Up: Ethics, the Public, (American Judicature Society: SJI–90–028). and the Media (American Judicature A Unified Orientation and Mentoring Children, Adolescents, and Families Society: SJI–96–152). Program for New Judges of All Arizona (National Council of Juvenile and Family Trial Courts (Arizona Supreme Court: SJI– Court Judges: SJI–95–030). Family Violence and Gender-Related Violent 90–078). Judicial Education on Substance Abuse Crime Court Organization and Structure (Institute (American Judges Association and National National Judicial Response to Domestic for Court Management/National Center for Center for State Courts: SJI–01–210). Violence: Civil and Criminal Curricula State Courts: SJI–91–043). BILLING CODE 6820–SC–P

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[FR Doc. 04–26718 Filed 12–6–04; 8:45 am] BILLING CODE 6820–SC–C

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Part IV

Securities and Exchange Commission 17 CFR Part 240 Issuer Restrictions or Prohibitions on Ownership by Securities Intermediaries; Final Rule

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SECURITIES AND EXCHANGE owner.1 This is often referred to as subject to any restriction or prohibition COMMISSION holding a security in ‘‘street name.’’ 2 on transfer to or from a securities Holding securities in street name at a intermediary.6 Under the proposed rule, 17 CFR Part 240 securities depository facilitates the the term ‘‘securities intermediary’’ transfer of negotiable certificates and would be defined as a clearing agency [Release No. 34–50758; File No. S7–24–04] obviates manually processed paperwork registered under Section 17A of the and physical delivery of certificates. Exchange Act or a person, including a RIN 3235–AJ26 Registered clearing agencies acting as bank, broker, or dealer, that in the securities depositories help to centralize ordinary course of its business Issuer Restrictions or Prohibitions on and automate the settlement of maintains securities accounts for others. Ownership by Securities securities, in part by reducing the As proposed, the rule would exclude Intermediaries physical movement of securities traded any equity security issued by a in the U.S. markets using book-entry AGENCY: partnership, as defined in Item 901 of Securities and Exchange movements. On occasion, other types of Regulation S–K. For tax or other Commission. securities intermediaries, such as ACTION: Final rule. broker-dealers or banks, may perform reasons, partnerships may have an similar functions by holding a certificate appropriate need to restrict ownership SUMMARY: The Securities and Exchange registered in its name but held on behalf and issue a securities certificate. Commission (‘‘Commission’’) is of its customers. The Commission solicited comments adopting a new rule under the The use of securities depositories in on the proposed rule and received Securities Exchange Act of 1934 order to minimize the physical fourteen comment letters from eleven (‘‘Exchange Act’’) that prohibits movement in connection with the commenters.7 The responses varied registered transfer agents from effecting settlement for securities traded in the any transfer of any equity security widely, with three commenters public market is essential to the prompt supporting the rule as proposed, five registered under Section 12 or any and accurate clearance and settlement of equity security that subjects an issuer to commenters opposing the proposal or securities transactions.3 The effort by reporting under Section 15(d) of the expressing reservations about the some issuers to restrict ownership of Exchange Act if such security is subject proposal until certain preconditions publicly traded securities by securities to any restriction or prohibition on have been met, and three commenters intermediaries can result in many of the transfer to or from a securities not expressing support or opposition inefficiencies and risks Congress sought intermediary, such as clearing agencies, but instead raising interpretive, to avoid when promulgating Section banks, or broker-dealers. The primary operational, or timing concerns with 17A of the Exchange Act.4 Restrictions purpose of the rule is to promote the adoption of the rule. After carefully on intermediary ownership deny integrity and efficiency of the U.S. investors the ability to use a securities considering the comments received, we clearance and settlement system. intermediary to hold their securities and have decided to adopt Rule 17Ad–20 DATES: Effective Date: March 7, 2005. to efficiently and safely clear and settle with a minor modification to address FOR FURTHER INFORMATION CONTACT: Jerry their securities transactions by book- certain commenter concerns raised Carpenter, Assistant Director, or Susan entry movements. relating to private placements and M. Petersen, Special Counsel, Office of On June 4, 2004, the Commission certain types of private agreements. Risk Management, 202/942–4187, proposed Rule 17Ad–20 that would Division of Market Regulation, prohibit registered transfer agents from Securities and Exchange Commission, effecting any transfer of any equity 450 Fifth Street, NW., Washington, DC, security registered under Section 12 or million and the class is held of record by more than 500 persons. 15 U.S.C. 78l(g). Under Section 12(b), 20549–1001. any equity security that subjects an all securities registered on a securities exchange SUPPLEMENTARY INFORMATION: issuer to reporting under 15(d) of the must also be registered with the Commission. 15 Exchange Act 5 if such security is U.S.C. 78l(b). Section 15(d) of the Exchange Act I. Introduction generally requires a company with an effective Recently, a number of issuers of 1 The registered owner is the name of the Securities Act registration statement to file the same individual shareholder recorded on the official periodic reports as a company that has a Section 12 equity securities trading in the public records of the issuer (sometimes referred to as the markets have imposed restrictions on registered class of securities. 15 U.S.C. 78o(d). record owner or legal owner of the securities). 6 Securities Exchange Act Release No. 49809 2 their securities to limit or to prohibit In the case of securities held in street name, (June 4, 2004), 69 FR 32784 (June 10, 2004), [File generally the securities are held by a securities ownership of the securities by securities No. S7–24–04]. depository (e.g., The Depository Trust Company) intermediaries such as depositories, 7 who as the registered owner holds the securities on Letters from David Patch (May 29, 2004, June 7, broker-dealers, and banks. Such behalf of another securities intermediary (e.g., a 2004, and August 3, 2004); Glenda King (June 5, restrictions require these securities to be broker-dealer or bank) who in turn holds the 2004); Frederick D. Lipman, Esq. (June 10, 2004); certificated and transactions in these securities for its customers, the beneficial owners. Larry E. Thompson, Managing Director and Senior securities to be manually cleared, All the rights and obligations of the securities are Deputy General Counsel, The Depository Trust & passed through the registered owner to the settled, and transferred on a transaction- Clearing Corporation (July 8, 2004, and August 19, beneficial owners. For more information on the 2004); Robert L. Stevens, Chairman, X–Clearing by-transaction basis. relationship between securities intermediaries and Corporation (July 9, 2004); Marc Castonguay, Vice beneficial owners, see infra note 21. To facilitate the clearance and President and CEO, Pacific Corporate Trust 3 Section 17A(e) of the Exchange Act directs the settlement of securities transactions, Company (July 12, 2004); H. Glenn Bagwell, Jr., Esq. Commission to use its authority to end the physical (July 12, 2004); Thomas L. Montrone, President and securities held by a securities movement of securities certificates in connection intermediary on behalf of its customers with the settlement among brokers and dealers of Chief Executive Officer, Registrar and Transfer or another securities intermediary are transactions in securities. 15 U.S.C. 78q–1(e). Company (July 16, 2004); Cleary, Gottlieb, Steen & commonly registered in the name of the 4 15 U.S.C. 78q–1. Hamilton (July 19, 2004); Ernest A. Pittarelli, securities intermediary or in its 5 Pursuant to Section 12(g) of the Exchange Act Chairman, Securities Industry Association (‘‘SIA’’) and the rules thereunder, a company must generally (July 28, 2004), and D. Stuart Bowers, Senior Vice nominee name, which makes the register a class of equity securities if on the last day President, Legg Mason Wood Walker, Incorporated securities intermediary the registered of its fiscal year it has total assets of more than $10 (July 30, 2004) (‘‘Legg Mason’’).

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II. Background agents,13 as well as other participants 14 negotiable instruments, certificates also in the national system for clearance and can be lost, stolen, or forged.19 All this A. The National System for Clearance settlement.15 Furthermore, specifically adversely affects the national system for and Settlement of Securities recognizing that the use of securities clearance and settlement. The concern Transactions certificates to transfer registered associated with lost certificates was In Section 17A(a) of the Exchange ownership decreases efficiency and dramatically demonstrated after safety in the capital markets, Congress September 11, 2001, when thousands of Act, Congress made findings that (1) the also directed the Commission to end the certificates at broker-dealers or banks prompt and accurate clearance and physical movement of securities (either being held in custody in vaults settlement of securities transactions, certificates in connection with the or being processed for transfer) either including the transfer of registered settlement among brokers and dealers.16 were destroyed or were unavailable for ownership and safeguarding of transfer. Certificates have also been B. The Role of Securities Intermediaries securities and funds related to clearance identified by the financial services and settlement activities, are necessary The process for delivering and industry as an obstacle to achieving for the protection of investors and those transferring certificated securities is streamlined processing (i.e., straight- acting on behalf of investors,8 and (2) almost entirely manual and as such, is through-processing) and shorter inefficient clearance and settlement labor-intensive, expensive, and time- settlement cycles.20 procedures impose unnecessary costs on consuming.17 The use of securities Securities intermediaries hold investors and those acting on their certificates can result in significant securities on behalf of others in order to behalf.9 To address these concerns, delays and expense in processing facilitate more efficient clearance and 18 Congress gave the Commission the securities transactions. Moreover, as settlement of securities transactions by authority and responsibility to regulate, reducing the need to transfer 13 coordinate, and direct the processing of The Exchange Act defines the term transfer certificates. Investors’ securities agent generally as any person who engages on generally are held in the name of a securities transactions in order to behalf of an issuer of securities or on behalf of itself facilitate the establishment of a national as an issuer of securities in (A) countersigning such securities intermediary, such as a securities upon issuance; (B) monitoring the securities depository, broker-dealer, or system for the prompt and accurate issuance of such securities with a view to bank, or its nominee, for the benefit of clearance and settlement of transactions preventing unauthorized issuance, a function the security intermediary’s customers. 10 commonly performed by a person called a registrar; in securities. The basic purpose of The securities intermediary or its Section 17A is to promote the (C) registering the transfer of securities; (D) exchanging or converting such securities; or (E) nominee is generally the registered development of a modern, nationwide transferring record ownership of securities by book- owner of the securities while the system for the safe and efficient keeping entry without physical issuance of securities intermediary’s customer securities certificates. 15 U.S.C. 78c(a)(25). processing of securities transactions that 21 14 Section 17A(f)(1) permits the Commission to typically is the beneficial owner. serves the interests of the financial adopt rules concerning the transfer of securities and community and the investing public.11 the rights and obligations of purchasers, sellers, to the costs and risks associated with buy-ins. Congress expressly provided the owners, lenders, borrowers, and financial Investors bear direct costs as well. Transfer agents intermediaries involved in or affected by such require investors to obtain a surety bond before the Commission with jurisdiction over transfers, and the rights of third parties whose transfer agent will issue a replacement certificate clearing agencies 12 and transfer interests devolve from such transfers. 15 U.S.C. for lost and stolen certificates. We understand that 78q–1(f)(1). generally most transfer agents charge investors 15 between 2%–4% of the current market value of the 8 15 U.S.C. 78q–1(a)(1)(A). See, e.g., Section 17A(b)(1) of the Exchange Act makes it unlawful for any clearing agency, unless securities to obtain a surety bond. 9 15 U.S.C. 78q–1(a)(1)(B). registered with the Commission, to perform the 19 In an effort to identify lost, missing, counterfeit, 10 15 U.S.C. 78q–1(a)(2)(A)(i). Congress function of a clearing agency with respect to any and stolen securities, Exchange Act Rule 17f–1 envisioned the Commission’s authority to extend to security other than an exempted security. 15 U.S.C. requires, among other entities, every exchange, the every facet of the securities handling process 78q–1(b)(1). Section 17A(c)(1) of the Exchange Act, securities association, broker, dealer, transfer agent, involving securities transactions within the United which makes it unlawful for any transfer agent, registered clearing agency, and many banks to States, including activities by clearing agencies, unless registered with the Commission, to directly report to the Commission or delegee, which depositories, corporate issuers, and transfer agents. or indirectly perform the function of a transfer agent currently is the Securities Information Center with respect to any security registered under (‘‘SIC’’), missing, lost, counterfeit, or stolen See S. Rep. No. 75, 94th Cong., 1st Sess. at 55 Section 12 of the Act or which would be required securities certificates. See 17 CFR 240.17f–1. SIC (1975). to be registered except for the exemption from operates a centralized database that records lost and 11 See S. Rep. No. 75, 94th Cong., 1st Sess. at 122 registration proved by Section 12(g)(2)(B) stolen securities. When a broker-dealer receives a (1975). (investment companies) or Section 12(g)(2)(G) security certificate to sell, the broker-dealer will 12 The Exchange Act defines the term clearing (certain securities issued by insurance companies). submit information about the certificate to SIC so agency as any person who acts as an intermediary 15 U.S.C. 78q–1(c)(1) and 15 U.S.C. 78l(a) that SIC may search its database to see if the respectively. Exchange Act Section 17A(d)(1) certificate has been reported as missing, lost, stolen, in making payment or deliveries or both in prohibits any registered clearing agency or or counterfeited. (For more information about SIC, connection with transactions in securities or who registered transfer agent from engaging in any see www.secic.com.) provides facilities for comparison of data respecting activity as a clearing agency or transfer agent in 20 See Exchange Act Release No. 49405 (March the terms of settlement of securities transactions, to contravention of rules and regulations as the 11, 2004), 69 FR 12922 (March 18, 2004), [File No. reduce the number of settlements of securities Commission may prescribe as necessary or S7–13–04] (securities transaction settlement transactions, or for the allocation of securities appropriate in the public interest, for the protection concept release). settlement responsibilities. Such term also means a of investors or otherwise in furtherance of the 21 The relationship between various levels of person, such as a securities depository, who (i) acts purposes of the Act. 15 U.S.C. 78q–1(d)(1). securities intermediaries and beneficial owners is as a custodian of securities in connection with a 16 15 U.S.C. 78q–1(e). complex. There may be many layers of beneficial system for the central handling of securities 17 For more information on the costs and risks owners (some of which may also be securities whereby all securities of a particular class or series associated with processing certificates, see intermediaries) with all ultimately holding Exchange Act Release No. 49405 (March 11, 2004), of any issuer deposited within the system are securities on behalf of a single beneficial owner, 69 FR 12922 (March 18, 2004), [File No. S7–13–04] who is sometimes referred to as the ultimate treated as fungible and may be transferred, loaned, (securities transaction settlement concept release). beneficial owner. For example, an introducing or pledged by bookkeeping entry without physical 18 If a broker-dealer is unable to have the security broker-dealer may hold its customer’s securities in delivery of securities certificates, or (ii) otherwise reregistered into the name of the buyer or the its account at a clearing broker-dealer, that in turn permits or facilitates the settlement of securities buyer’s securities intermediary after trade date, the holds the introducing broker-dealer’s securities in transactions or they hypothecation or lending of rejection of the transfer after trade date exposes the an account at DTC. In this context, DTC or its securities without the physical delivery of customer to the costs and risks that she may have nominee is the registered owner and DTC’s securities certificates. 15 U.S.C. 78c(a)(23). to buy in the security and exposes the broker-dealer Continued

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Securities registered in the name of the depository-eligible securities 25 and that In accordance with its rules, DTC securities intermediary or its nominee require securities to be made depository accepts deposits of securities from its allows the securities to be eligible if possible before they can be participants (i.e., broker-dealers and immobilized 22 and held in fungible listed for trading.26 banks),29 credits those securities to the bulk 23 thereby significantly reducing Registered clearing agencies acting as depositing participants’ accounts, and the number of certificates that need to securities depositories immobilize effects book-entry movements of those be delivered and transferred. This in securities and centralize and automate securities.30 The securities deposited turn reduces the risk and cost associated securities settlements.27 Holding with DTC are registered in DTC’s with transferring the securities. securities positions in book-entry form nominee name 31 and are held in Transfers in ownership of securities at securities depositories reduces the fungible bulk for the benefit of its held in the name of a securities physical movement of publicly traded participants and their customers.32 Each intermediary are accomplished by securities in the U.S. markets and participant having an interest in making book-entry adjustments to the significantly improves efficiencies and securities of a given issue credited to its accounts on the securities safeguards in processing securities account has a pro rata interest in the intermediary’s records. certificates, which in turn reduces the securities of that issue held by DTC.33 Consistent with Congress’ directive to costs of those transactions to investors Some securities trading in the public establish a national system for clearance and market professionals alike. market are not deposited at a securities and settlement and to decrease the The Depository Trust Company depository because either the securities inefficiencies and risks associated with (‘‘DTC’’), the largest securities are not eligible for deposit 34 or the processing securities certificates, the depository in the world, provides securities intermediary chooses not to Commission has long encouraged the custody and book-entry transfer services deposit the securities.35 To clear and use of alternatives to holding securities for the vast majority of securities settle securities transactions without the in certificated form. The Commission’s transactions in the U.S. market use of a securities depository, broker- approval of the registration of securities involving equities, corporate and dealers must make independent depositories as clearing agencies in 1983 municipal debt, money market arrangements to provide for delivery of instruments, American depositary securities (in certificated form) and constituted an important step in 28 achieving the mandates established by receipts, and exchange-traded funds. payment on a trade-by-trade basis. In Congress by immobilizing securities in cases where an issuer has prohibited 25 Exchange Act Release No. 32455 (June 11, ownership of their securities by certain a registered clearing agency and settling 1993), 58 FR 33679 (June 18, 1993), [File Nos. SR– transactions by book-entry Amex–93–07; SR–BSE–93–08; SR–MSE–93–03; SR– securities intermediaries, such as DTC, movements.24 The Commission also has NASD–93–11; SR–NYSE–93–13; SR–PSE–93–04; some broker-dealers register their approved the rule filings of self- and SR–Phix–93–09)] (order approving rules customers’ positions in the name of the requiring members, member organizations, and broker-dealer so that certificates do not regulatory organizations that require affiliated members of the New York Stock their members to use the facilities of a Exchange, National Association of Securities need to be issued for each customer and securities depository for the book-entry Dealers, American Stock Exchange, Midwest Stock transferred on each trade. However, settlement of all transactions in Exchange, Boston Stock Exchange, Pacific Stock securities transactions between broker- Exchange, and Philadelphia Stock Exchange to use dealers would still have to be manually the facilities of a securities depository for the book- participants (i.e., broker-dealers and banks) are entry settlement of all transactions in depository- processed. Thus, clearing and settling beneficial owners, as are the participants’ eligible securities with another financial securities transactions outside of a customers. However, DTC, the clearing broker- intermediary). In rare circumstances, DTC will be depository causes greater risks and dealer (the DTC participant), and the introducing unable to accept a deposit of a security because it broker-dealer are all securities intermediaries. is unable to process it. In those cases, the rules of ADRs.) E-mail from Joseph Trezza, Senior Product These distinctions may be important under both the self-regulatory organizations do not require the Manager, DTCC, to the Commission staff (November federal and state law when determining the rights security to be depository eligible. 14, 2003). and obligations of the parties holding securities on 26 Exchange Act Release No. 35798 (June 1, 1995), 29 In the case of ‘‘book-entry-only’’ securities (e.g., behalf of others. 60 FR 30909 (June 12, 1995), [File Nos. SR–Amex– no securities certificates are available), the issuer 22 Immobilization of securities occurs where a 95–17; SR–BSE–95–09; SR–CHX–95–12; SR– will authorize DTC to credit the account or securities depository holds the underlying NASD–95–24; SR–NYSE–95–19; SR–PSE–95–14; accounts of participants with all of the issuer’s certificate and transfers of ownership are recorded SR–PHLX–95–34] (order approving rules setting outstanding shares. through book-entry movements between the forth depository eligibility requirements for issuers 30 depository’s participants’ accounts. An issue is seeking to have their shares listed on the American See, e.g., Rules 5 and 6 of DTC’s Rules. partially immobilized (as is the case with most Stock Exchange, Boston Stock Exchange, Chicago 31 DTC registers securities in the name of its equity securities traded on an exchange or at the Stock Exchange, National Association of Securities nominee, Cede & Co., which makes it the registered NASD) when the street name positions are Dealers, New York Stock Exchange, Pacific Stock owner of the securities. immobilized (i.e., those held through broker-dealers Exchange, and the Philadelphia Stock Exchange). 32 Securities deposited at DTC by its participants that are participants of a depository), but certificates 27 Securities depositories work in conjunction or the issuers in the case of book-entry-only are still available to individual shareholders upon with securities clearing corporations. Both types of securities are legally or beneficially owned by the request. Dematerialization of securities occurs entities must be registered as clearing agencies participants or their customers at the time of the where there are no paper certificates available, and under Section 17A of the Exchange Act. Clearing deposit and are subsequently transferred into DTC’s all transfers of ownership are made through book- corporations, such as the National Securities nominee name. entry movements. For more information about Clearing Corporation, serve to compare trades 33 While DTC is the registered owner, the immobilization and dematerialization, see submitted to it by its participants and net those participants and their customers are the beneficial Exchange Act Release No. 49405 (March 11, 2004), trades to a single position at the end of the day. The owners. See supra note 21. 69 FR 12922 (March 18, 2004), [File No. S7–13–04]. trade position data is then submitted to the 34 A securities depository determines whether a 23 Fungible bulk means that no participant or depository in order to effectuate settlement by security is eligible for deposit. Certain securities customer of a participant has any claim or debiting or crediting the participants’ book-entry may not be eligible for a variety of reasons such as ownership rights to any particular certificate held securities position at DTC and facilitating the the security cannot conform to the depository’s by DTC. Rather, participants have a securities payments to or from the participants. processing systems or ownership of the security is entitlement to obtain a certificate representing 28 Of the four depositories registered as clearing restricted in such a manner that it cannot be freely securities held in their DTC accounts. agencies in 1983, DTC is the only one still transferred. See Rule 5 of DTC’s Rules. 24 Exchange Act Release No. 20221 (September operating. DTC estimates that as of December 31, 35 For example, DTC participants may choose not 23, 1983), 48 FR 45167 (October 3, 1983), [File Nos. 2002, approximately 84% of the shares issued by to deposit the securities in the depository if the SR–600–5 and 600–19] (order approving the domestic companies listed on the NYSE and 88% security is not widely traded, and instead hold clearing agency registration of four depositories and of the domestic companies listed on the Nasdaq are certificated securities registered in the name of four clearing corporations). deposited at DTC. (These statistics do not include either the participant’s nominee or its customer.

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inefficiencies, including credit risk issuers believe that requiring all through the national system for issues and risk of defaults, than clearing securities to be in certificated form and clearance and settlement and benefit and settling securities transactions precluding ownership by certain from its efficiencies and risk reductions within a depository. securities intermediaries forces broker- and is a significant step backwards in dealers to deliver certificates on each our progress to develop the national C. Need for the Rule transaction and eliminates the ability of system. Furthermore, forced A small but growing number of naked short sellers to maintain a naked certification of securities is inconsistent issuers whose securities are registered short sale position.42 with the industry’s goals of streamlining under Section 12 or are reporting under A number of these issuers indicated processing of securities transactions.44 Section 15(d) of the Exchange Act 36 that they had adopted or would adopt These types of restrictions have also recently have restricted, or indicated restrictions, assertedly pursuant to state caused investors increased costs and their intention to restrict, ownership of corporation laws, to prohibit ownership delays. By forcing securities their securities by prohibiting their of their securities by a depository, intermediaries to submit securities as transfer agents from acknowledging securities intermediaries, or both.43 part of an issuer’s recapitalization, the ownership of shares registered in the Issuers’ actions to implement the transfer agent must transfer the name of DTC or by prohibiting transfer restrictions caused numerous clearance securities by canceling the certificate of their securities to DTC or in some and settlement problems. Some of these registered in the name of the securities 37 cases to any securities intermediary. issuers refused to recognize positions intermediary and re-register a new Most, if not all, of the issuers restricting that had been registered in the name of certificate in the name of the beneficial ownership of their securities have also DTC’s nominee or in the name of owner. Transfer agent registration fees, required that the shares be represented broker-dealers before the adoption of the which may range from $10.00 to $75.00 38 in certificated form. In several cases, restriction and refused to transfer (or per transfer, and costs for secure the issuer has required the broker-dealer allow their transfer agent to transfer) delivery of securities certificates, can be to disclose the name of the ultimate stock to the name of any entity or more than the market value of the beneficial owner before reregistering person that the issuer believed was not securities being processed.45 In some any securities held by the broker-dealer the ultimate beneficial owner. Where cases, the broker-dealers assume these either in the name of the broker-dealer issuers refused to recognize ownership 39 costs but in many cases the cost is or in the name of DTC. Some brokers positions registered in the name of passed along to investors. Broker- refused because they believed securities intermediaries, the broker- dealers that did reregister securities disclosure of the customer’s name dealers and banks were forced received numerous complaints from would violate federal securities laws 40 individually to negotiate a solution investors about the fees, particularly or contractual obligations to the directly with the issuer. where the investors had not issued customer. Other broker-dealers could If securities intermediaries are instructions to reregister the securities. not disclose the name of the ultimate precluded from having securities Where broker-dealers must deliver the beneficial owner because they knew registered in their names, the securities securities certificates to an issuer’s only the identity of their customer and intermediaries’ ability to hold and move transfer agent and the transfer agent not necessarily for whom their customer securities is severely limited. As a similarly must deliver the newly was holding the securities. result, trading and clearance and Issuers imposing these restrictions, registered certificates, there are settlement efficiency suffers, and costs significant costs and delays in obtaining sometimes referred to as ‘‘custody-only and risks increase. This consequence of trading,’’ frequently state that they are certificates, which could ultimately issuer restrictions is not compatible impede the customers’ ability to sell or imposing ownership or transfer with the Congressional objective that restrictions on their securities to protect otherwise negotiate the security in the trades in the securities of publicly marketplace. their shareholders and their share price traded companies should be settled from ‘‘naked’’ short selling.41 These III. The Proposed Rule under federal securities laws, it generally refers to 36 Supra note 5. On June 4, 2004, the Commission situations where a seller sells a security without 46 37 See, e.g., www.jagnotes.com; www.nutk.com. owning or borrowing the security and does not proposed Rule 17Ad–20 that would Also see ‘‘Intergold Corporation Announces deliver when delivery is due. Exchange Act Release prohibit registered transfer agents 47 Custody Only CommonShare Transfer System,’’ No. 50103 (July 28, 2004), 69 FR 48008 (August 6, from effecting any transfer of any equity PRNewswire-First Call (January 30, 2003). 2004), [File No. S7–23–03] (adoption of Regulation security registered under Section 12 or 38 Id. The certification requirement does not in SHO). and of itself preclude securities from being 42 Id. any equity security that subjects an deposited at DTC. In fact, DTC’s nominee owns 43 See, e.g., www.jagnotes.com; www.nutk.com. issuer to reporting under 15(d) of the many of the securities deposited at DTC in Also see ‘‘Intergold Corporation Announces Exchange Act 48 if such security is certificated form, generally by a global or balance Custody Only CommonShare Transfer System,’’ subject to any restriction or prohibition certificate. PRNewswire-First Call (January 30, 2003). 39 Id. Registration of a transfer is necessary to Previously, some issuers sought to withdraw from 44 See Exchange Act Release No. 49405 (March change registered ownership of a security. DTC all securities issued by them and indicated 11, 2004), 69 FR 12922 (March 18, 2004), [File No. 40 For example, some broker-dealers have that they would not allow their securities to be S7–13–04]. See also ‘‘SIA T+1 Business Case Final expressed concern that such disclosure may cause reregistered in the name of DTC. In June 2003, the Report,’’ at 18–21 (August 2000)(‘‘SIA Business them to violate Exchange Act Rule 14b–1 that Commission approved a DTC rule change clarifying Case Report’’). The report is available online at requires a broker to provide a requesting issuer only that DTC’s rules and procedures provide only for http://www.sia.com/t_plus_one_issue/pdf/ with the identities of beneficial owners who have participants (i.e., broker-dealers and banks) to BusinessCaseFinal.pdf. not objected to disclosures of this information to submit withdrawal instructions for securities 45 issuers. 17 CFR 240.14b–1. deposited at DTC and do not require DTC to comply Only issuers whose securities are trading on the 41 See Exchange Act Release No. 47978 (June 4, with withdrawal requests from issuers. Exchange NYSE are prohibited from charging transfer or 2003), 68 FR 35037 (June 11, 2003), [File No. SR– Act Release Nos. 47365 (February 13, 2003), 68 FR certification fees. DTC–2003–02] (order approving proposed rule 8535 (February 21, 2003), [File No. SR–DTC–2003– 46 Securities Exchange Act Release No. 49809 change concerning requests for withdrawal of 02] (notice of proposed rule change); 47978 (June (June 4, 2004), 69 FR 32784 (June 10, 2004), [File certificates by issuers). A short sale is a sale of a 4, 2003), 68 FR 35037 (June 11, 2003), [File No. SR– No. S7–24–04]. security that the seller does not own or is DTC–2003–02] (order approving proposed rule 47 Supra note 13. Issuers acting as their own effectuated by the delivery of borrowed securities. change concerning requests for withdrawal of transfer agent would be subject to Rule 17Ad–20. Although ‘‘naked short sale’’ is not a defined term certificates by issuers). 48 Supra note 5.

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on transfer to or from a securities the public market and have directed that One of these commenters opposed to intermediary.49 Under the proposed shares owned by and registered in the adoption of Rule 17Ad–20 believed that rule, the term ‘‘securities intermediary’’ name of DTC’s nominee be surrendered, adoption of the rule raises state law would be defined as a clearing agency DTC contends that issuers do not have concerns.61 This commenter stated that registered under Section 17A of the continuing ownership rights in restrictions on transfer, as well as the Exchange Act or a person, including a securities they have sold into the rights of a corporation and its bank, broker, or dealer, that in the marketplace and that attempts to securityholders, are a matter of state law ordinary course of its business exercise control is improper and may and that by prohibiting transfer agents maintains securities accounts for others. constitute conversion. As such, DTC from effecting certain transfers, the rule As proposed, the rule would exclude believes Rule 17Ad–20 will prevent circumvents the rights of issuers to any equity security issued by a transfer agents from aiding and abetting ‘‘control its own destiny and protect its partnership, as defined in Item 901 of wrongful conduct by certain issuers that shareholders.’’ 62 Regulation S–K.50 interferes with the exercise by DTC and Three of these commenters believe that certain preconditions should be met IV. Comment Letters by its participants of their duties to securityholders with respect to before Rule 17Ad–20 is adopted.63 Two As noted above, the Commission securities deposited at DTC. of these commenters believe the received fourteen comment letters from Commission should develop an effective DTC submitted a second comment eleven commenters in response to the program to prevent naked short selling letter 54 to address one commenter who proposed rule.51 Three commenters before limiting the efforts of small opposed the adoption of Rule 17Ad–20 submitting four letters supported the companies to prevent naked short and who criticized the National proposal in its current form.52 The SIA selling and to reasonably guarantee the Securities Clearing Corporation’s stated that precluding securities ‘‘integrity’’ of the U.S. clearance and (‘‘NSCC’’) 55 stock borrow program intermediaries from having securities settlement system, including the alleged because he believed that the stock registered in their own name will problems relating to ‘‘DTC’s stock increase the use of securities certificates borrow program facilitated naked short borrow program,’’ which they believe and thereby will increase the costs and selling by allowing broker-dealers to facilitates naked short selling.64 One risks associated with processing these trade more shares than have been 56 commenter also recommended, without certificates. Legg Mason stated in its issued. DTC stated that the program addressing legal and regulatory comment letter that it concurred with was implemented in order to satisfy its concerns, that issuers should be able to the SIA’s comment. They noted that the members’ priority needs for stock that require that their securities be cleared use of certificates adversely affects the the members do not receive because of and settled through the issuer or other clearance and settlement system and fails, and therefore the program alternative means and that the proposed undermines the industry’s long-term facilitates the settlement of securities rule be amended to provide an 57 efforts to streamline securities transactions. DTC further stated that exception to allow the issuer to do so if processing and achieving straight- shares must be on deposit at DTC and it can demonstrate the capability to through processing in the U.S. that the lender cannot loan shares settle transactions in electronic book- DTC noted in its support for Rule multiple times. entry form.65 17Ad–20 that some issuers have refused Five commenters submitting seven Three commenters did not express to process or return shares presented by comment letters were either against their support for or opposition to the DTC for transfer or have significantly adoption of the proposal or expressed adoption of Rule 17Ad–20 but instead delayed transfer.53 In many cases, DTC reservations about adopting such a rule raised interpretive, operational, or asserts, issuers’ actions have resulted in until certain preconditions were met.58 timing issues with the proposal.66 Two the suspension of clearance and One of the five commenters opposed the of these commenters suggested the settlement services, and thereby have adoption of the proposed rule for a proposed the rule should not be adopted delayed or prevented the settlement of variety of reasons, including that trades and ultimately disrupted the adoption of the rule would remove the 61 Letter from X–Clearing Corporation. national system for clearance and ‘‘self help’’ measure issuers were using 62 Id. settlement. While some issuers have to protect themselves against the 63 Letters from David Patch, H. Glenn Bagwell, and Frederick D. Lipman. claimed they have the right to control 59 negative effects of naked short selling. 64 Letters from H. Glenn Bagwell, and Frederick the disposition of securities trading in Another commenter opposed to D. Lipman. One of these commenters maintained adoption of Rule 17Ad–20 expressed that state corporation laws generally permit 49 Supra note 15. her belief that it was important to be corporations to establish the number of authorized 50 Item 901(b)(1) defines the term partnership to shares in their certificates or articles or mean any: (i) Finite-life limited partnership or (ii) able to register shares in her own name incorporation and authorize the board of directors 60 other finite-life entity. 17 CFR 229.901(b)(1). The and to obtain certificates. to issue those shares. Naked short selling, this Commission has the authority under Section 36 of commenter contends, can increase the supply of the Exchange Act to conditionally or shares beyond those authorized, thereby 54 Letter from DTC (August 19, 2004). unconditionally exempt any security or class of undermining the board’s authority under state law 55 securities from the provisions of the Exchange Act NSCC is an affiliate of DTC and is a registered to control the number of outstanding shares. to the extent that such exemption is necessary or clearing agency that maintains a book-entry Another commenter alluded to this issue when he appropriate in the public interest, and is consistent accounting system that centralizes the settlement of noted that Regulation SHO indicated that in some with the protection of investors. 15 U.S.C. compared security transactions and maintains an cases settlement failure exceed the public float. 78mm(a)(1). orderly flow of security and money balances. Letter from David Patch (August 16, 2004). The For tax or other reasons, partnerships may have 56 Letter from H. Glenn Bagwell. Commission recently adopted Regulation SHO that an appropriate need to restrict ownership and issue 57 NSCC’s Stock Borrow Program was approved addresses certain concerns relating to naked short a securities certificate. A ‘‘publicly traded by the Commission. Securities Exchange Act selling. Exchange Act Release No. 50103 (July 28, partnership’’ as defined in Section 7704 of the Release No. 17422 (December 29, 1980), 46 FR 3104 2004), 69 FR 48008 (August 6, 2004), [File No. S7– Internal Revenue Code is subject to treatment as a (January 13, 1981). 23–03]. See Section IV for further discussion on corporation rather than a partnership for tax 58 Letters from David Patch, Glenda King, Regulation SHO. purposes. 26 CFR 1.7704–1. Frederick D. Lipman, X–Clearing Corporation, and 65 Letter from X–Clearing Corporation. 51 Supra note 7. H. Glenn Bagwell. 66 Letters from Pacific Corporate Trust Company, 52 Letters from the SIA, Legg Mason, and DTC. 59 Letter from David Patch. Registrar and Transfer Company, and Cleary, 53 Letter from DTC (July 8, 2004). 60 Letter from Glenda King. Gottlieb, Steen & Hamilton.

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until after Regulation SHO has become transfer agents 70 from transferring 71 resources in attempting to negotiate effective to ensure that the rules have any equity security registered under resolutions with these issuers and their effectively dealt with the naked short Section 12 or any equity security that transfer agents. In many cases, the selling problem and therefore have subjects an issuer to reporting under issuers’ refusal to return the shares has eliminated the issuers’ need to impose Section 15(d) of the Act 72 if such resulted in the suspension of clearance restrictions on ownership by or transfer security is subject to any restriction or and settlement services for the issuers’ to securities intermediaries.67 Another prohibition on transfer to or from a securities, which in some cases has commenter expressed concern that securities intermediary ‘‘in its capacity resulted in problems in clearing and adoption of Rule 17Ad–20 may lead to as such.’’ Restrictions imposed by settling trades. The difficulty in unintended consequences. 68 This private placements or in private obtaining access to securities deposited commenter argued that by prohibiting agreements generally do not permit at DTC but withheld by an issuer or its transfer agents from following the transfers to anyone but those permitted transfer agent and the difficulty in directions of issuers, the rule could to purchase or own the securities, as obtaining timely transfers through the force issuers to terminate their current specified under federal law or by private transfer agent have caused some broker- transfer agent and assume the agreements. By modifying Rule 17Ad– dealers to discontinue buying or selling processing responsibilities as ‘‘self 20(a), the Commission is making clear these issuers’ securities on behalf of agents,’’ which may lead to a that the rule applies only to restrictions their customers. deterioration of recordkeeping and or prohibitions imposed by issuers on We believe that restrictions on shareholder services. transfers of their publicly traded transfer of publicly traded securities to One of these three commenters securities to or from those securities intermediaries are expressed concerns that adoption of securityholders that are securities inconsistent with Section 17A of the Rule 17Ad–20 as proposed may intermediaries and are not the ultimate Exchange Act. Transactions settled unintentionally result in prohibiting beneficial owners.73 As a result, the rule outside of a registered clearing agency certain restrictions on transfers that does not apply to situations such as have to be certificated and then were never intended to be covered by restrictions imposed by issuers in order processed manually on a transaction-by- the rule.69 The commenter contended to prevent an unregistered distribution transaction basis, which creates that, as currently worded, the rule or other violation of federal securities inefficiencies, risks, and added costs in would not only cover ‘‘custody-only’’ laws, or to effectuate private clearing and settling securities trading restrictions on equity securities agreements. transactions and in transferring but would also prohibit issuers from Restrictions on transfer or ownership securities ownership. Furthermore, issuing equity securities of the same imposed by issuers subsequent to the restrictions that force investors to clear class that are ‘‘subject to’’ transfer purchase of securities by investors in and settle their securities outside the restrictions that may be imposed for a the public market raise a number of national system for clearance and variety of commercial reasons, such as legal and regulatory concerns. A number settlement require shareholders to of issuers have received but refused to assume these increased costs and risks. escrow arrangements, collateral security allow transfer and return of securities Investors and market participants arrangements, and the issuance of registered in DTC’s nominee name, should be permitted to hold securities equity securities in private placements. which in some cases has constituted in street name and avail themselves of This commenter suggested that any DTC’s entire position.74 DTC and its the benefits of the national system for restriction or prohibition on transfer be participants have expended significant clearance and settlement if they so exempt from the rule when the same choose. class of securities is eligible for 70 Supra notes 13 and 15. All transfer agents that The use of the national system for clearance through a securities are required to register as such pursuant to Section clearance and settlement, and more intermediary. 17A(c) of the Exchange Act, whether they are in fact specifically, the use of clearing agencies, registered or not, must comply with Rule 17Ad–20 V. Discussion and all other applicable transfer agent rules. does not hamper an investors’ ability to 71 The term ‘‘transfer’’ means (1) delivery of the register securities in their own name or A. Adoption of the Rule security (i.e., the certificate, or in the case of book- obtain certificates, provided that the entry, an instruction) (2) a volitional act by the issuer allows for certificated positions.75 After considering the comments transferor which manifests an intent to change received, the Commission is adopting ownership or convey a security interest and, (3) Generally, an investor who wants an proposed Rule 17Ad–20, with one reregistration of ownership. Egon Guttman, Modern individually registered position in minor modification. In response to the Securities Transfers section 6:2, at 6–4 (3d ed. certificate form can instruct her broker- concern raised by one commenter that 2002). dealer to register the securities in her 72 15 U.S.C. 78l and 15 U.C.C. 78o(d) respectively. Rule 17Ad–20 might unintentionally name and issue a certificate. 73 The rule will apply even if a restriction or While we understand that restrictions result in prohibiting transfers that were prohibition does not expressly state that transfer to not intended to be covered by the rule or ownership by securities intermediaries is on transfer to intermediaries reflect (e.g., restrictions imposed by private restricted or prohibited. For example, the rule issuer attempts to address what they placements or restrictions resulting from would apply to securities where the issuer permits believe to be illegal naked short selling, transfer to or ownership by only the ‘‘ultimate the Commission does not believe that private agreements between beneficial owner.’’ shareholders), the Commission is 74 When a broker-dealer participant or its naked short selling concerns should be modifying Rule 17Ad–20(a) to prohibit customer requests a certificate for a position addressed by restrictions on maintained at DTC, the broker-dealer participant transferability of securities that trade in submits a ‘‘Withdrawal by Transfer’’ instruction to the public markets. Restrictions on 67 Letters from Pacific Corporate Trust Company DTC, which in turn sends the appropriate transfer transferability to securities and Registrar and Transfer Company. The agent a certificate representing all or a portion of compliance date for the relevant provisions of DTC’s position. The transfer agent registers the intermediaries results in the stock being Regulation SHO designed to address naked short number of shares in the customer’s name as selling problems is scheduled for January 3, 2005. instructed by DTC and then reregisters the 75 State law determines if an issuer is required to Exchange Act Release No. 50103 (July 28, 2004), 69 remainder of the shares in DTC’s nominee name. issue certificates and the conditions to such FR 48008 (August 6, 2004), [File No. S7–23–03]. The transfer agent sends the broker-dealer or the issuance. Some states, such as New York, permit 68 Letter from Registrar and Transfer Company. customer his or her shares and sends DTC the issuers to issue securities in book-entry form only 69 Letter from Cleary, Gottlieb, Steen & Hamilton. balance of its shares. (i.e., in dematerialized form).

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less liquid, and in the risks, restricting or prohibiting transfer to or subject an issuer to reporting under inefficiencies, and costs described ownership by securities intermediaries. Section 15(d) of the Exchange Act. In above, and are not compatible with the Rather, the rule addresses transfer order to provide sufficient notice and structure or goals of the national system agents’ ability to effect transfers of opportunity for issuers to remove for clearance and settlement. equity securities that are required to restrictions from securities if they so We also note that the Commission register or report under Exchange Act choose and for transfer agents to make recently adopted Regulation SHO to and have restrictions or prohibitions on sure they are in compliance with the address many of the problems transfer to securities intermediaries. rule, the Commission is providing for a associated with naked short selling.76 Accordingly, Rule 17Ad–20 is designed compliance date of March 7, 2005. As adopted, Rule 203 of Regulation SHO to prohibit registered transfer agents VI. Paperwork Reduction Act creates a uniform Commission rule from transferring equity securities that requiring broker-dealers, prior to are encumbered by restrictions that are Rule 17Ad–20 does not contain new effecting short sales in all equity inconsistent with the operation of the ‘‘collection of information’’ securities, to ‘‘locate’’ securities national system for clearance and requirements within the meaning of the available for borrowing and imposes settlement and the congressional Paperwork Reduction Act of 1995 87 additional delivery requirements on mandate to end the physical movement (‘‘PRA’’). Accordingly, the PRA is not broker-dealers for securities in which a of securities certificates. applicable to the adoption of the rule substantial amount of failures to deliver Finally, one commenter suggested because it does not impose any new have occurred (i.e., threshold that because of Rule 17Ad–20 some collection of information requirements securities).77 The Commission believes issuers should be permitted to or may that would require approval of the that the requirements in Regulation decide to use alternative securities Office of Management and Budget SHO will reduce short selling abuses transfer, clearance, and settlement (‘‘OMB’’). and will act as a restriction on naked mechanisms, including performing VII. Costs and Benefits of Proposed short selling. these functions internally.81 Issuers Rule We also do not believe that it is either contemplating following this course of We are sensitive to the costs and necessary or prudent to delay the action must consider, among other benefits of our rules and we have adoption of this rule until after provisions, that Section 17A(b)(1) of the considered the costs and benefits of Regulation SHO has been in effect for Exchange Act makes it unlawful for any Rule 17Ad–20. To assist us in some period of time or until after its entity, including an issuer, to act as a effect on naked short selling is 82 evaluating the costs and benefits, in the clearing agency without registering proposing release we encouraged determined, as some commenters have with the Commission as a clearing 78 suggested. Any delay would continue 83 commenters to discuss any cost or agency. Similarly, in response to the benefits that the rule might impose. In to expose investors to increased costs commenter who raised concerns that and risks that come from exclusion of particular, we requested comment on some issuers may terminate their three major areas. First, we requested their securities from the national system transfer agent and instead perform these 79 comment on the potential costs for any for clearance and settlement. functions internally,84 Section 17A(c) of One commenter raised concerns that for any modification to computer the Exchange Act requires any entity adoption of the rule would impede systems, operations, or procedures the acting as a transfer agent, including an issuers’ or securityholders’ rights under proposed rule may require, as well as issuer,85 for a security registered under state law.80 As discussed more fully any potential benefits resulting from the Section 12 of the Exchange Act to above, in adopting Section 17A of the proposal for investors, securities register as a transfer agent.86 An issuer Exchange Act, Congress directed the intermediaries (including, but not acting as its own transfer agent would, Commission to use its authority to limited to, broker-dealers, depositories, therefore, have to register as a transfer facilitate the establishment of the and banks), transfer agents, other agent and would become subject to Rule national system for clearance and securities industry professionals, and 17Ad–20. settlement, including the regulation of others. Second, we sought comments, clearing agencies and transfers agents. B. Scope and Effective Date analysis, and empirical data on the extent to which the proposed rule In using its authority under the The Commission believes that would benefit investors by reducing Exchange Act to adopt Rule 17Ad–20, adoption of Rule 17Ad–20 advances the costs associated with issuer-imposed the Commission is following this goals of the national system for restrictions on transferring securities to Congressional mandate by facilitating clearance and settlement by requiring or from securities intermediaries and access to the national system for publicly traded equity securities to be comment and data on the benefits to clearance and settlement that is not eligible for clearance and settlement investors of the proposed rule to the impeded by restrictions on transfers to through the national system and by extent it precludes decreased liquidity, or from securities intermediaries. Rule allowing investors and securities increased risk, and increased 17Ad–20 does not prevent issuers from intermediaries the choice as to how to transaction costs that may be associated hold their securities. Therefore, the 76 with such issuer-imposed restrictions Securities Exchange Act Release No. 50103 Commission is applying the rule to all (July 28, 2004), 69 FR 48008 (August 6, 2004), [File on securities. And third, we solicited equity securities, except those No. S7–23–03]. data on the potential benefits that may 77 specifically excluded from Rule 17Ad– Id. Regulation SHO requires broker-dealers to accrue due to a reduction in production, comply with the locate, borrow and delivery 20, that either are registered pursuant to transfers, and processing of certificates, requirements by January 3, 2005. Section 12 of the Exchange Act or 78 Letters from Pacific Corporate Trust Company and the increased use of a depository. and Registrar and Transfer Company. Commenters were requested to provide 81 Id. 79 The compliance date for the relevant provisions 82 analysis and data to support their views of Regulation SHO designed to address naked short 15 U.S.C. 78c(a)(23). 83 on the costs and benefits associated selling problems is scheduled for January 3, 2005. 15 U.S.C. 78q–1(b)(1). Exchange Act Release No. 50103 (July 28, 2004), 69 84 Letter from Registrar and Transfer Company. with proposed Rule 17Ad–20. We FR 48008 (August 6, 2004), [File No. S7–23–03]. 85 15 U.S.C. 78c(a)(25). 80 Letter from X–Clearing Corporation. 86 15 U.S.C. 78q–1(c)(1). 87 44 U.S.C. 3501 et seq.

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received no comments providing cost or Costs and risks associated with missing, B. Costs benefit estimates, but received lost, counterfeit, or stolen certificates The Commission believes that Rule comments on the potential economic are also significant. Between 1996 and 17Ad–20 will impose minimal, if any, impact generally of the proposed rule. 2000, the SIA estimated that an average cost to registered transfer agents of 1.7 million certificates were reported A. Benefits 90 complying with the rule. To date, we lost or stolen. In 2001, that figure have identified one cost relating to the increased to 2.5 million certificates.91 By prohibiting registered transfer handling, shipping, or insurance costs Reporting missing, lost, stolen, or agents from effecting a transfer in any associated with the repackaging and counterfeit securities certificates to SIC, equity security registered under Section returning non-transferable certificates. determining negotiability of these 12 or in any equity security that subjects One transfer agent estimated this cost to certificates, and paying for surety bonds an issuer to reporting under Section be approximately $22.50 per for lost certificates costs the financial 15(d) that restricts or prohibits transfers certificate.94 We are unable to estimate industry and investors millions of to or from securities intermediaries, the total cost because transfer agents dollars each year.92 In recent years, the proposed Rule 17Ad–20 would allow have no way of knowing how many, if fraudulent resale and fraudulent investors to clear and settle their any, of the issuers for whom they securities transactions through the collateralization of cancelled certificates (certificates with no resale value) alone currently act as transfer agents would national system for clearance and retain the restriction, and thereby incur settlement and thereby take advantage have cost investors and financial institutions millions of dollars.93 the costs associated with returning non- of benefits of that system. We believe transferable securities. Furthermore, we that the use of the national system, Furthermore, the process of manually transferring securities transactions on an believe that many registered transfer which can only be accessed through agents would not act as transfer agent securities intermediaries, provides individual trade basis through the transfer agent causes significant delays for an issuer that imposed restrictions significant benefits to U.S. investors, subject to Rule 17Ad–20. brokers, dealers, other securities in settling securities transactions and registering ownership. These delays Rule 17Ad–20 will require registered intermediaries, and issuers, by transfer agents to determine whether or increasing efficiencies and reducing may prevent investors from effecting timed transactions in the market. All of not securities subject to the rule could risks associated with processing, be eligible for transfer prior to effecting transferring, and settling securities these costs and risks are ultimately borne by investors. The Commission a transfer and whether the person or certificates. While some of these class of persons restricted from benefits may not be readily quantifiable believes the costs and risks are substantially reduced or even ownership by the issuer are securities in terms of dollar value, particularly intermediaries. We understand that those related to risk reduction, we eliminated through the use of book- entry transfers and automated transfer agents routinely make the nonetheless believe that investors and determinations as to restrictions on the broker-dealers who choose to use the settlement at a securities depository. DTC and a number of broker-dealers securities prior to accepting an agency national system for clearance and appointment. Accordingly, we do not settlement will lower their transactions have informed the Commission that they have had to undertake special believe that any additional operational costs and realize a reduction in certain or procedural changes would be needed risks related to settlement of securities communications with investors and institute manual processing in order to to be made to comply with Rule 17Ad– transactions and transfer of securities to 20. registered ownership. exit securities positions from DTC (or any other intermediary position) and to The Commission understands that Issuers restricting transfers of their accommodate issuers’ requests to some issuers might believe that the rule securities to or from securities certificate positions in the name of the removes a mechanism by which they intermediaries are causing investors to ultimate beneficial owner. The believe they can counter the negative have to certificate their positions, which Commission believes that by adopting effects of naked short selling in general, must be reregistered after every Rule 17 Ad–20, investors and industry and manipulative naked short selling in purchase or sale transaction. The 95 participants may realize cost savings particular. As has been contended in Securities Industry Association (‘‘SIA’’) and other potential benefits resulting comment letters to the Commission, by estimated that the annual direct and from not having to undertake these requiring these securities to participate indirect cost of processing and communication and manual processing in the national system for clearance and transferring certificates in the U.S. expenses. settlement, it has been alleged that both market, including those related to issuers and investors will suffer losses 88 shipping, signature guarantees, Letter’’). These letters advocate the need to due to the diminution in the market transfer fees, custody, and manual dematerialize the U.S. market. value of these securities caused by processing, exceeds $234,000,000.89 90 Id. The SIA’s statistics on securities reported naked short selling or by adverse effects lost and stolen were obtained by the SIA directly on ownership (e.g., market value and 88 from SIC. Every endorsement of a securities certificate voting rights) stemming from such short requires a signature guarantee by an acceptable 91 Id. guarantor. Securities Transfer Association Rule 92 Nazareth Letter. Investors who have either lost Book, Section 1.02 (1998). The Uniform their certificates or had the certificates stolen 94 Telephone conversation with Charlie Rossi, Commercial Code that states that a signature generally must obtain a surety bond before the Division President, Equiserve, on October 1, 2004. guarantee is a warranty by the signature guarantor transfer agent will register a transfer of ownership The latest data showed an increase from an that, among other things, the endorser is an in order to protect the transfer agent from the risk estimated cost of $5.00 indicated in the proposing appropriate person to endorse and thus the transfer of wrongful transfers in the event that the lost or release to $22.50 due to the results of a cost analysis the security. UCC 8–312. stolen certificates reappear at a later date. We performed by Equiserve. Most of the increase was 89 Letter to Robert L.D. Colby, Deputy Director, understand that generally most transfer agent associated with the manual process of scanning the Division of Market Regulation, Commission, from charge investors 2%–4% of the current market certificate, ensuring appropriateness of the Donald Kittell, Executive Vice President, SIA value of the securities for such a bond. rejection, and communicating with the (August 20, 2003); letter to Annette Nazareth, 93 See Exchange Act Release No. 48931 securityholders to explain the rejection. Director, Division of Market Regulation, (December 16, 2003), 68 FR 74390 (December 23, 95 Letter from David Patch. Also see Exchange Act Commission, from Donald Kittell, Executive Vice 2003), [File No. S7–18–00] (adopting rule relating Release No. 47978 (June 4, 2003), 68 FR 35037 (June President, SIA (March 24, 2003) (‘‘Nazareth to certificate destruction). 11, 2003), [File No. SR–DTC–2003–02].

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sale transactions.96 The Commission is benefit from the increased efficiencies ordinary course of its business addressing these issues through and risk reduction afforded by the maintains securities accounts for others. oversight and regulation 97 rather than national system for clearance and The Commission is excluding from Rule issuers attempting to control the settlement. By prohibiting restrictions 17Ad–20 any equity security issued by ownership or transfer of securities that on transfers to and from securities a partnership, as defined in Item 901 of trade in the public market, which depositories and other intermediaries, Regulation S–K.105 A Summary of the conflicts with Congress’ goals in Rule 17Ad–20 should promote Initial Regulatory Flexibility Analysis enacting Section 17A of the Exchange efficiency by reducing some of the costs was published in the proposing Act. As stated earlier in this release, we and delays associated with the clearance release.106 The IRFA, which was believe issuer-imposed restrictions on and settlement of securities transactions prepared in accordance with 5 U.S.C. securities often make the stock less and promote capital formation by 603, is available for inspection at the liquid, causing reduction in the trading making it easier for the securities to be Commission’s Public Reference office, volume of the securities. Costs of traded in the marketplace. 450 5th Street, NW., Washington, DC imposing such restrictions can exceed Rule 17Ad–20 also should enhance 20549. competition. While most companies the market value of the securities being A. Reasons for the Proposed Action processed. Under all of these listed on a national exchange or Nasdaq circumstances, to the extent that there is are already subject to rules that in As described more fully in Section I, any diminution of issuers’ abilities to essence prohibit restrictions on transfers recently issuers whose securities are counter the perceived negative effects of to or from securities intermediaries,101 registered under Section 12, and naked short selling by restricting or those issues trading in the non-national therefore trading in the public markets, prohibiting ownership or transfer by market and not subject to any listing have restricted or attempted to restrict securities intermediaries, we believe the requirements have not been subject to securities issued by them so as to limit cost is justified by the benefits of the this restriction, such as those securities or prohibit transfer to or from securities national system for clearance and trading in the Pink Sheets. Rule 17Ad– intermediaries, and in particular a 107 settlement.98 20 would help to level the playing field securities depository. In doing so, by extending these obligations to all these issuers have precluded investors VIII. Consideration of Burden on companies issuing equity securities that from being able to hold securities in Competition, and Promotion of are registered under Section 12 or that street name through a securities Efficiency, Competition, and Capital subject issuers to reporting under intermediary and in turn preclude Formation Section 15(d) of the Exchange Act and investors from availing themselves of Section 3(f) the of the Exchange Act,99 transferred by a registered transfer the decreased risk and costs associated as amended by the National Securities agent.102 In doing so, the rule should with automated settlement and book- Markets Improvement Act of 1996,100 also promote liquidity in these entry transfers available through a provides that whenever the Commission securities by removing barriers to securities depository. This consequence is engaged in rulemaking and is ownership of securities and decreasing of issuer restrictions is not compatible required to consider or to determine transaction costs, thereby facilitating with the congressional objective that whether an action is necessary or increased efficiency and capital trades in the securities of publicly appropriate in the public interest, it formation. traded companies should be settled must also consider whether the action through the national system for IX. Final Regulatory Flexibility clearance and settlement and benefit will promote efficiency, competition, Analysis and capital formation. Section 23(a)(2) from its efficiencies and risk reductions of the Exchange Act requires the This Final Regulatory Flexibility and is a significant step backwards in Commission, in adopting rules under Analysis (‘‘FRFA’’) has been prepared in our progress to develop the national the Exchange Act, to consider the anti- accordance with 5 U.S.C. 604. This system. FRFA relates to the adoption of Rule competitive effects of any rule it adopts. B. Significant Issues Raised by Public Exchange Act Section 23(a)(2) prohibits 17Ad–20 under the Exchange Act of 103 Comment the Commission from adopting any rule 1934 (‘‘Act’’), which prohibits When the Commission proposed Rule that would impose a burden on registered transfer agents from 17Ad–20, it requested comment with competition not necessary or transferring any equity security registered pursuant to Section 12 of the respect to the proposal and the appropriate in furtherance of the accompanying IRFA. We received no purposes of the Exchange Act. Act or any equity security that subjects The Commission’s view is that Rule an issuer to reporting under Section 15(d) of the Act 104 if such security is 105 Item 901(b)(1) defines the term partnership to 17Ad–20 would promote the objectives mean any: (i) Finite-life limited partnership or (ii) of the national system for clearance and subject to any restriction or prohibition other finite-life entity. 17 CFR 229.901(b)(1). The settlement as established in Section 17A on transfer to or from a securities Commission has the authority under Section 36 of of the Exchange Act by allowing intermediary in its capacity as such. the Exchange Act to conditionally or Under the rule, the term ‘‘securities unconditionally exempts any security or class of securities intermediaries and their securities from the provisions of the Exchange Act customers effecting securities intermediary’’ is defined as a clearing to the extent that such exemption is necessary or transactions in the public market to agency registered under Section 17A of appropriate in the public interest, and is consistent the Exchange Act or a person, including with the protection of investors. 15 U.S.C. 78mm(a)(1). 96 a bank, broker, or dealer, that in the Id. 106 Securities Exchange Act Release No. 49809 97 Exchange Act Release No. 50103 (July 28, (June 4, 2004), 69 FR 32784 (June 10, 2004), [File 2004), 69 FR 48008 (August 6, 2004), [File No. S7– 101 See supra notes 25 and 26. No. S7–24–04]. 23–03]. 102 As noted above, the proposed rule would not 107 Exchange Act Release Nos. 47365 (February 98 As noted above, most securities trading on an apply to equity securities of issuers subject to 13, 2003), 68 FR 8535 (February 21, 2003), [File No. exchange or Nasdaq are already subject to SRO Section 15(d) that are transferred by transfer agents SR–DTC–2003–02] (notice of proposed rule rules that require depository eligibility. See supra that are not required to be registered under Section change); 47978 (June 4, 2003), 68 FR 35037 (June notes 25 and 26. 17A of the Exchange Act. 11, 2003), [File No. SR–DTC–2003–02] (order 99 15 U.S.C. 78c. 103 15 U.S.C. 78a et seq. approving proposed rule change concerning 100 Pub. L. 104–290, 110 Stat. 3416 (1996). 104 Supra note 5. requests for withdrawal of certificates by issuers).

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comments on the IRFA, but received transfer and fewer than 500 items for certain representations or comments on the rule generally. Three processing during the preceding six indemnifications from each other to commenters supported adoption of the months (or in the time that it has been remove any current restrictions that rule proposed. Two of these in business, if shorter); (2) transferred would be prohibited by the proposed commenters stated that precluding items only of issuers that would be rule and to assist registered transfer securities intermediaries from having deemed a ‘‘small business’’ or ‘‘small agents in complying with the rule, securities registered in their own name organizations’’ as defined in Rule 0–10 which might require one-time expenses will increase the use of securities under the Exchange Act; (3) maintained related to contract revisions or legal certificates and thereby will increase the master shareholder files that in the fees. costs and risks associated with aggregate contained less than 1,000 The Commission understands that processing these certificates. They noted shareholder accounts or was the named some issuers might believe that the rule that the use of certificates adversely transfer agent for less than 1,000 removes a mechanism by which they affects the clearance and settlement shareholder accounts at all times during believe they can counter the negative system and undermines the industry’s the preceding fiscal year (or in the time effects of naked short selling in general, long-term efforts to streamline securities that it has been in business if shorter); and manipulative naked short selling in processing and achieving straight- or (4) is not affiliated with any person particular.110 As has been previously through processing in the U.S. The third other than a natural person that is not contended in comment letters to the commenter, DTC, noted that some a small business or small organization Commission, by requiring these issuers have refused to process or return under Rule 0–10. We estimate that 470 securities to participate in the national shares presented by DTC for transfer or transfer agents of approximately 900 system for clearance and settlement, it have significantly delayed transfers. registered transfer agents qualify as has been alleged that both issuers and DTC asserted that such actions by these ‘‘small entities’’ for purposes of RFA investors will suffer losses due to the issuers have resulted in the suspension and would be subject to the diminution in the market value of these of clearance and settlement services and requirements of Rule 17Ad–20. securities caused by naked short selling thereby have delayed or prevented the Rule 0–10 under the Exchange Act or by adverse effects on ownership (e.g., settlement of trades and ultimately defines an issuer, other than an market value and voting rights) disrupted the national system for investment company, to be a small stemming from such short sale clearance and settlement. entity if it has total assets of $5 million transactions.111 The Commission Five commenters opposed adoption of or less on the last day of its most recent believes that these issues are being 109 Rule 17Ad–20 or expressed reservations fiscal year. We estimate that addressed through oversight and about the proposed rule until certain approximately 2500 issuers qualify as regulation rather than issuers attempting preconditions were met. One of these ‘‘small entities’’ for purposes of RFA to control the ownership or transfer of commenters contended that the rule and could be affected by the securities that trade in the public would eliminate an important means by requirements of Rule 17Ad–20. market. As stated in the release, we which issuers can protect themselves However, we believe that a significant believe issuer-imposed restrictions on against the perceived negative effects of number of these small issuers will not securities often make the stock less naked short selling. Several others impose restrictions on their securities in liquid, causing reduction in the trading believe the Commission should develop a manner prohibited by Rule 17Ad–20 volume of the securities. Under all of an effective program to prevent naked due to the impact of such restrictions on these circumstances, to the extent that short selling before limiting the efforts the liquidity of the securities and there is any diminution of issuers’ of small companies to prevent naked therefore will not be effected by the abilities to counter the perceived short selling. One other stated that the rule. To the extent that there is an negative effects of naked short selling by rule raises state law concerns because impact on the minority of small issuers restricting or prohibiting ownership or the rights of a corporation and its who choose to impose the type of transfer by securities intermediaries, we securityholders are a matter of state law. restrictions effected by Rule 17Ad–20, believe the cost is justified by the Three commenters did not express we believe the benefits of this rule on benefits of the national system for their support for or opposition to the national system for clearance and clearance and settlement.112 adopting Rule 17Ad–20 but instead settlement justify the costs imposed on raised interpretive, operational, or them. E. Significant Alternatives timing issues with the proposal. One of D. Reporting, Recordkeeping, and Other The RFA directs the Commission to these commenters stated its concern that Compliance Requirements consider significant alternatives that Rule 17Ad–20 as proposed may would accomplish the stated objective, unintentionally result in prohibiting While there are no reporting or while minimizing any significant certain restrictions on transfers that recordkeeping obligations associated adverse impact on small entities. In were never intended to be covered by with Rule 17Ad–20, compliance by connection with Rule 17Ad–20, the the rule, such as escrow arrangements, registered transfer agents will be subject Commission considered the following collateral security arrangements, and the to examination by the transfer agents’ alternatives: (a) The establishment of issuance of equity securities in private appropriate regulatory authority. Rule differing compliance or reporting placements. 17Ad–20 requires registered transfer agents to determine whether or not requirements or timetables that take into C. Small Entities Subject to the Rule securities subject to the proposed rule 110 See Exchange Act Release No. 47978 (June 4, Rule 17Ad–20 will affect registered could be eligible for transfer prior to 2003), 68 FR 35037 (June 11, 2003), [File No. SR– transfer agents and issuers that are small effecting a transfer and whether the DTC–2003–02]. entities. Pursuant to Rule 0–10 under person or class of persons restricted 111 Id. the Exchange Act,108 a registered from ownership by the issuer are 112 Most securities trading on a registered transfer agent is a small entity if it: (1) securities intermediaries. Issuers and exchange or Nasdaq are already subject to SRO rules that require depository eligibility. Supra note Received fewer than 500 items for registered transfer agents might obtain 25 and 26. Accordingly, the proposed Rule 17Ad– 20 would affect only those issuers not trading on 108 17 CFR 240.0–10(a). 109 Id. a registered exchange or Nasdaq.

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account the resources of small entities; prohibition on transfer to or from a seq.; and 18 U.S.C. 1350, unless otherwise (b) the clarification, consolidation or securities intermediary, Rule 17Ad–20 noted. simplification of compliance and uses performance standards rather than * * * * * reporting requirements under the rule design standards to achieve its purpose. I 2. Section 240.17Ad–20 is added to for small entities; (c) the use of In addition, the Commission is unaware read as follows: performance rather than design of ways to further clarify, consolidate or standards; and (d) an exemption from simplify the proposed amendment for § 240.17Ad–20 Issuer restrictions or coverage of the rule, or any part thereof, small entities. prohibitions on ownership by securities for small entities. intermediaries. X. Statutory Authority Rule 17Ad–20 is designed to promote (a) Except as provided in paragraph the integrity and efficiency of the U.S. The Commission is adding (c) of this section, no registered transfer clearance and settlement system by § 240.17Ad–20 of Chapter II pursuant to agent shall transfer any equity security requiring as many publicly traded Sections 3(b), 17A, 23(a), and 36 of the registered pursuant to section 12 or any securities as practicable be eligible to 113 Exchange Act in the manner set forth equity security that subjects an issuer to clear and settle through the national below. reporting under section 15(d) of the Act system for clearance and settlement and (15 U.S.C. 78l or 15 U.S.C. 78o(d)) if allow investors and securities List of Subjects in 17 CFR Part 240 such security is subject to any intermediaries retain the choice as to Securities, Securities intermediaries, restriction or prohibition on transfer to how to hold their securities in order to Transfer agents. or from a securities intermediary in its avail themselves of the benefits of the Text of Final Rule capacity as such. national system for clearance and settlement. The Commission believes I In accordance with the foregoing, Title (b) The term securities intermediary that the establishment of different 17, Chapter II of the Code of Federal means a clearing agency registered requirements for small entities is neither Regulations is amended as follows: under section 17A of the Act (15 U.S.C. necessary nor practical because the 78q–1) or a person, including a bank, proposal is designed to provide general PART 240—GENERAL RULES AND broker, or dealer, that in the ordinary standards that would protect the public REGULATIONS, SECURITIES course of its business maintains and members of the financial EXCHANGE ACT OF 1934 securities accounts for others in its capacity as such. community from increased I 1. The general authority citation for inefficiencies, costs, and risks Part 240 continues to read in part as (c) The provisions of this section shall associated with trading, clearing, and follows: not apply to any equity security issued settling securities without the by a partnership as defined in rule protections afforded by the national Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 901(b) of Regulation S–K (§ 229.901(b) system for clearance and settlement. 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, of this chapter). By prohibiting registered transfer 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, Dated: November 30, 2004. agents from transferring any equity 78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, 78q, 78q–1, 78s, 78u–5, 78w, 78x, 78ll, security registered pursuant to Section By the Commission. 78mm, 79q, 79t, 80a–20, 80a–23, 80a–29, Jill M. Peterson, 12 of the Act or any equity security that 80a–37, 80b–3, 80b–4, 80b–11, and 7201 et subjects an issuer to reporting under Assistant Secretary. Section 15(d) of the Act if such security 113 15 U.S.C. 78q–1(a)(1), 78q–1(a)(2), 78q–1(d), [FR Doc. 04–26785 Filed 12–6–04; 8:45 am] is subject to any restriction or and 78w(a). BILLING CODE 8010–01–P

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Part V

Department of Housing and Urban Development 24 CFR Part 570 Modification of the Community Development Block Grant Definition for Metropolitan City and Other Conforming Amendments; Final Rule

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DEPARTMENT OF HOUSING AND 5301–5320) (the Act) establishes the significant) as defined in section 3(f) of URBAN DEVELOPMENT statutory framework for the CDBG the order. Any changes made in this program. HUD’s regulations rule subsequent to its submission to 24 CFR Part 570 implementing the CDBG program are OMB are identified in the docket file. [Docket No. FR–4872–F–02] located at 24 CFR part 570 (entitled The docket file is available for public ‘‘Community Development Block inspection between 8 a.m. and 5 p.m. RIN 2506–AC15 Grants’’). weekdays in the Regulations Division, Section 102(a)(4) of the Act defines Office of General Counsel, Room 10276, Modification of the Community the term ‘‘metropolitan city’’ as ‘‘(A) a Department of Housing and Urban Development Block Grant Definition city within a metropolitan area which is Development, 451 Seventh Street, SW., for Metropolitan City and Other the central city of such area, as defined Washington, DC. Conforming Amendments and used by the Office of Management Environmental Impact AGENCY: Office of the Assistant and Budget, or (B) any other city, within Secretary for Community Planning and a metropolitan area, which has a This rule simply revises existing HUD Development, HUD. population of fifty thousand or regulations by replacing ‘‘central city’’ or ‘‘central cities’’ with ‘‘principal city’’ ACTION: Final rule. more.* * *’’ The term ‘‘metropolitan area’’ is defined in section 102(a)(3) of or ‘‘principal cities,’’ where applicable, SUMMARY: This rule makes final the the Act as ‘‘a standard metropolitan in order to be consistent with OMB Community Development Block Grant statistical area as established by the standards. This rule does not direct, (CDBG) program regulations that Office of Management and Budget.’’ provide for assistance or loan or replaced the obsolete term ‘‘central city’’ Section 102(b) of the Act provides that mortgage insurance for, or otherwise with a new term ‘‘principal city’’ in the the Secretary may, by regulation, change govern or regulate, real property definition of ‘‘metropolitan city’’ and or otherwise modify the meaning of the acquisition, disposition, leasing, other CDBG regulations referencing terms defined in section 102(a) in order rehabilitation, alteration, demolition or ‘‘central city.’’ The revisions were to reflect any technical change or new construction, nor does it establish, necessary because of the recent changes modification made by the United States revise, or provide for standards for to the Office of Management and Bureau of the Census or OMB. construction, construction materials, Budget’s (OMB) Standards for Defining manufactured housing, or occupancy. Metropolitan and Micropolitan II. Regulatory Background This rule revises an existing document Statistical Areas (MSAs) and the On December 12, 2003, HUD where the existing document as a whole announcement in 2003 of new published an interim rule (68 FR 69580) would not fall under a categorical definitions for those areas using Census replacing the now-obsolete term exclusion but the amendment by itself 2000 data. The rule also updated the ‘‘central city’’ with the term ‘‘principal does so. Pursuant to 24 CFR 50.19(c)(1) affected CDBG program regulations so city.’’ The interim rule amended the and (c)(2), these revisions are that the terminology used by HUD is definition of ‘‘metropolitan city’’ in 24 categorically excluded from the consistent with OMB standards and the CFR 570.3; updates 24 CFR 570.4, environmental assessment required by purposes of the Housing and which relates to the allocation of funds the National Environmental Policy Act Community Development Act of 1974. and the recognition of boundaries of of 1969 (42 U.S.C. 4332). This rule follows an interim rule that entitlement areas, and 24 CFR Impact on Small Entities was published in the Federal Register 570.307(e), which deals with the December 12, 2003. One comment was ineligibility of included units of general The Regulatory Flexibility Act (RFA) received in response to the interim rule. local government (that it, those units of (5 U.S.C. 601 et seq.), generally requires After careful consideration of the local government that are included as an agency to conduct a regulatory comment received in response to the part of an urban county). This change flexibility analysis of any rule subject to interim rule, this rule makes final was based on definitions and standards notice and comment rulemaking without change the interim rule published by OMB. For further requirements unless the agency certifies published on December 12, 2003. information on the background and that the rule will not have a significant economic impact on a substantial DATES: Effective Date: January 6, 2005. significance of these changes, please see number of small entities. FOR FURTHER INFORMATION CONTACT: Sue the preamble to the December 12, 2003 rule (68 FR 69580 et seq.). There are no anti-competitive Miller, Director, Entitlement discriminatory aspects of the rule with Communities Division, Office of Block III. This Final Rule regard to small entities and there are not Grant Assistance, Office of Community any unusual procedures that need to be Planning and Development, Room 7282, This rule received one public comment from a small city. This complied with by small entities. Department of Housing and Urban Therefore, the undersigned certifies Development, 451 Seventh Street, SW., commenter supported this rule. This rule therefore makes final the that this proposed rule will not have a Washington, DC 20410–7000; telephone significant economic impact on a (202) 708–1577 (this is not a toll-free December 12, 2003, interim rule without change. substantial number of small entities, number). Individuals with hearing or and an initial regulatory flexibility speech impairments may access the IV. Findings and Certifications analysis is not required. telephone number listed in this section through TTY by calling the toll-free Executive Order 12866, Regulatory Executive Order 13132, Federalism Federal Information Relay Service at Planning and Review Executive Order 13132 (entitled (800) 877–8339. The Office of Management and Budget ‘‘Federalism’’) prohibits an agency from SUPPLEMENTARY INFORMATION: (OMB) reviewed this rule under publishing any rule that has federalism Executive Order 12866, Regulatory implications if the rule either imposes I. Statutory Background Planning and Review. OMB determined substantial direct compliance costs on Title I of the Housing and Community that this rule is a ‘‘significant regulatory state and local governments and is not Development Act of 1974 (42 U.S.C. action’’ (but not economically required by statute, or the rule preempts

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state law, unless the agency meets the private sector. This final rule does not insular areas, Lead poisoning, Loan consultation and funding requirements impose any federal mandate on any programs—housing and community of section 6 of the executive order. This state, local, or tribal government or the development, Low and moderate rule does not have federalism private sector within the meaning of income housing, New communities, implications and does not impose UMRA. Pockets of poverty, Puerto Rico, substantial direct compliance costs on Reporting and recordkeeping Catalog of Federal Domestic Assistance state and local governments or preempt requirements, Small cities, Student aid. state law within the meaning of the The Catalog of Federal Domestic I Accordingly, for the reasons discussed executive order. Assistance (CFDA) program number is in the preamble, HUD makes final the 14.218. Unfunded Mandates Reform Act December 12, 2003 interim rule (68 FR List of Subjects in 24 CFR Part 570 69582) without change. Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531– Administrative practice and Dated: November 30, 2004. 1538) (UMRA) establishes requirements procedure, Community development Nelson R. Brego´n, for Federal agencies to assess the effects block grant, Grant programs—education, General Deputy Assistant Secretary. of their regulatory actions on State, Grant programs, housing and [FR Doc. 04–26772 Filed 12–6–04; 8:45 am] local, and tribal governments and the community development, Indians, BILLING CODE 4210–29–P

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Part VI

Department of Housing and Urban Development 24 CFR Part 2004 Office of Inspector General (OIG) Subpoenas and Production in Response to Subpoenas or Demands of Courts or Other Authorities; Proposed Rule

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DEPARTMENT OF HOUSING AND FOR FURTHER INFORMATION CONTACT: issued to OIG employees in legal URBAN DEVELOPMENT Bryan Saddler, Counsel to the Inspector proceedings where the OIG is not a General, Room 8260, Department of party. 24 CFR Part 2004 Housing and Urban Development, 451 When a party or any person is [Docket No. FR–4942–P–01; HUD–2004– Seventh Street, SW., Washington, DC aggrieved by the Counsel’s decision 0018]] 20410–4500; telephone (202) 708–1613 denying a request for documents or (this is not a toll-free number). Persons RIN 2508–AA14 testimony, that party or person may seek with hearing or speech impairments review of the decision by filing a written Office of Inspector General (OIG) may access this number through TTY by Notice of Intention to Petition for Subpoenas and Production in calling the toll-free Federal Information Review (Notice). After filing this Notice, Response to Subpoenas or Demands Relay Service at (800) 877–8339. the party or person must also file a of Courts or Other Authorities SUPPLEMENTARY INFORMATION: Petition for Review (Petition) detailing I. Background the issues and reasons why a review of AGENCY: Office of Inspector General, the Counsel’s decision is appropriate. HUD. The regulations regarding requests of All filings must be served on the ACTION: Proposed rule. HUD’s Office of Inspector General (OIG) Counsel in accordance with § 2004.23. employees for testimony and production Either the Counsel or the IG will review SUMMARY: This proposed rule would of documents are located at 24 CFR part the Petition, and the decision on the amend HUD’s Office of Inspector 2004. Under § 2004.20, no OIG Petition will become the final decision General’s (OIG’s) regulations to provide employee may produce official records of the OIG. an appellate review procedure regarding or provide any testimony relating to If the party or person is not satisfied the OIG’s responses to subpoenas issued official information in response to a with the OIG’s decision, the party or to OIG employees requesting documents demand or request without the prior person may seek judicial review. or testimony in legal proceedings where written approval of the Inspector However, as noted in the current the OIG is not a party. The General (IG) or the Counsel for Inspector regulations, if the Counsel declines to establishment of an appellate General (Counsel). The IG has delegated approve a demand for records or proceeding is designed to ensure both a the authority to respond to requests and testimony, and a court or other authority thorough review process by the OIG and demands for production of OIG records rules that the demand must be complied a complete opportunity for a party or and testimony of OIG employees to the with regardless of OIG instructions not person to take formal exception to the Counsel. OIG’s determination. Section 2004.21 identifies the factors to release the material or information DATES: Comment Due Date: February 7, that the OIG will consider in making sought, the OIG employee or former OIG 2005. determinations in response to requests employee upon whom the demand has been made shall respectfully decline to ADDRESSES: Interested persons are for OIG documents or testimony, and comply with the demand. invited to submit comments regarding § 2004.25 provides that the Counsel’s this rule to the Regulations Division, decision is the final determination on This rule amendment sets forth a Office of General Counsel, Room 10276, demands and requests of OIG employees review process where Counsel can Department of Housing and Urban for the production of official records thoroughly and timely consider the Development, 451 Seventh Street, SW., and information or testimony. party’s or person’s petition prior to Washington, DC 20410–0500. Electronic After request or demand of documents issuing a final decision on the release of comments may be submitted through or testimony, the Counsel will review documents or testimony. either: the demand and determine whether the III. Findings and Certifications • The Federal eRulemaking Portal at OIG employee is authorized to release www.regulations.gov; or documents or testify. The Counsel will Information Collection Requirements • The HUD electronic Web site at notify the requester of the final www.epa.gov/feddocket. Follow the link determination and the reasons for the The information collection entitled ‘‘View Open HUD Dockets.’’ grant or denial of the request. requirements contained in this proposed Commenters should follow the rule have been submitted to the Office instructions provided on that site to II. This Proposed Rule of Management and Budget (OMB) submit comments electronically. As the current regulations are written, under the Paperwork Reduction Act of Facsimile (FAX) comments are not no review process exists for unfavorable 1995 (44 U.S.C. 3501–3520). In acceptable. In all cases, communications decisions made by the Counsel. Once accordance with the Paperwork must refer to the docket number and the Counsel makes a determination Reduction Act, an agency may not title. All comments and denying a request for documents or conduct or sponsor, and a person is not communications submitted will be testimony, or restricting the release of required to respond to, a collection of available for public inspection and documents or testimony, the decision is information unless the collection copying between 8 a.m. and 5 p.m. final. This proposed rule addresses the displays a currently valid OMB control weekdays at the above address. Copies need for a review process by amending number. are also available for inspection and 24 CFR part 2004 to provide for an The burden of the information downloading at www.epa.gov/ appellate review process regarding the collections in this proposed rule is feddocket. Counsel’s responses to subpoenas estimated as follows:

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REPORTING AND RECORDKEEPING BURDEN

Estimated av- Number of Number of re- erage time for Estimated an- Section reference parties sponses per requirement nual burden respondent (in hours) (in hours)

§ 2004.28(c) ...... 8 2 5 80

In accordance with 5 CFR flexibility analysis of any rule subject to sector. This proposed rule does not 1320.8(d)(1), HUD is soliciting notice and comment rulemaking impose any federal mandates on any comments from members of the public requirements unless the agency certifies state, local, or tribal government or the and affected agencies concerning this that the rule will not have a significant private sector within the meaning of collection of information to: economic impact on a substantial UMRA. (1) Evaluate whether the proposed number of small entities. This rule Executive Order 13132, Federalism collection of information is necessary would provide those persons aggrieved for the proper performance of the by an OIG decision denying a request Executive Order 13132 (entitled functions of the agency, including for production of documents or ‘‘Federalism’’) prohibits, to the extent whether the information will have testimony the opportunity to seek practicable and permitted by law, an practical utility; review of the decision. This rule would agency from publishing any rule that (2) Evaluate the accuracy of the impose no additional economic or other has federalism implications and either agency’s estimate of the burden of the burdens. Rather, this rule provides imposes substantial direct compliance proposed collection of information; small entities with the benefit of a costs on state and local governments (3) Enhance the quality, utility, and review process for unfavorable OIG and is not required by statute, or the clarity of the information to be decisions. Accordingly, this proposed rule preempts state law, unless the collected; and rule would not have a significant agency meets the consultation and (4) Minimize the burden of the economic impact on a substantial funding requirements of section 6 of the collection of information on those who number of small entities. Therefore, the Executive Order. This rule does not are to respond; including through the undersigned certifies that this proposed have federalism implications and does use of appropriate automated collection rule will not have a significant not impose substantial direct techniques or other forms of information economic impact on a substantial compliance costs on state and local technology (e.g., permitting electronic number of small entities, and an initial governments or preempt state law submission of responses). regulatory flexibility analysis is not within the meaning of the Executive Interested persons are invited to required. Notwithstanding HUD’s Order. submit comments regarding the determination that this rule will not List of Subjects in 24 CFR Part 2004 information collection requirements in have a significant economic effect on a Administrative practice and this rule. Under the provisions of 5 CFR substantial number of small entities, procedure, Courts. part 1320, OMB is required to make a HUD specifically invites comments decision concerning this collection of regarding any less burdensome For the reasons stated in the information between 30 and 60 days alternatives to this rule that will meet preamble, HUD proposes to amend 24 after today’s publication date. Therefore, HUD’s objectives as described by this CFR part 2004 as follows: a comment on the information preamble. collection requirements is best assured PART 2004—SUBPOENAS AND of having its full effect if OMB receives Environmental Impact PRODUCTION IN RESPONSE TO the comment within 30 days of today’s SUBPOENAS OR DEMANDS OF In accordance with 24 CFR 50.19(c)(1) COURTS OR OTHER AUTHORITIES publication. This time frame does not of the Department’s regulations, this affect the deadline for comments to the proposed rule does not direct, provide 1. The authority citation for 24 CFR agency on the proposed rule, however. for assistance or loan and mortgage part 2004 continues to read as follows: Comments must refer to the proposal by insurance for, or otherwise govern or name and docket number (FR–4942–P– Authority: Inspector General Act of 1978, regulate, real property acquisition, as amended (5 U.S.C. app.) and 42 U.S.C. 01) and must be sent to: disposition, leasing, rehabilitation, 3535(d). Mark Menchik, HUD Desk Officer, alteration, demolition, or new 2. Revise § 2004.28 to read as follows: Office of Management and Budget, construction, or establish, revise, or New Executive Office Building, provide for standards for construction or § 2004.28 Procedure in the event of an Washington, DC 20503, Fax number: construction materials, manufactured adverse ruling. (202) 395–6947, E-mail: Mark_D._ housing, or occupancy. Therefore, this (a) Opportunity to review adverse [email protected]; proposed rule is categorically excluded ruling. Any person aggrieved by a and from the requirements of the National decision made by the Counsel under Reports Liaison Officer, Office of Environmental Policy Act (42 U.S.C. this part denying a request for Inspector General, Department of 4321 et seq.). documents or testimony, or restricting the release of documents or testimony, Housing and Urban Development, 451 Unfunded Mandates Reform Act Seventh Street, SW, Room 8170, may seek review of that decision Washington, DC 20410–4500. Title II of the Unfunded Mandates pursuant to paragraph (c) of this section. Reform Act of 1995 (UMRA) (2 U.S.C. (b) Procedure in the event of Regulatory Flexibility Act 1531–1538) establishes requirements for conflicting court order. If the Inspector The Regulatory Flexibility Act (RFA) federal agencies to assess the effects of General or Counsel declines to approve (5 U.S.C. 601 et seq.), generally requires their regulatory actions on state, local, a demand for records or testimony and an agency to conduct a regulatory and tribal governments and the private a court or other authority rules that the

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demand must be complied with the petitioner, the adverse decision, and summary form. Decisions on the irrespective of the instructions from the any dates (such as deposition, hearing, Petition may be made by either the OIG not to produce the material or or court dates) that are significant to the Inspector General or the Counsel and disclose the information sought, the party. The Notice shall be served in shall become the final decisions of the employee or former employee upon accordance with § 2004.23. OIG. The Petition will be served in whom the demand has been made shall (2) Petition for review. Within five accordance with § 2004.23. (d) Prerequisite to judicial review. respectfully decline to comply with the business days of the filing of a Notice, Pursuant to Section 704 of the demand, citing United States ex rel. the person or party seeking review shall Administrative Procedure Act, 5 U.S.C. Touhy v. Ragen, 340 U.S. 462 (1951). file a Petition for Review (Petition) 704, a petition to the agency for review (c) Procedure. (1) Notice of intention containing a clear and concise statement of a decision made under the authority to petition for review. A party or any of the issues to be reviewed and the of this part is a prerequisite to the person aggrieved by the decision made reasons why the review is appropriate. seeking of judicial review of the final pursuant to this part denying or The petition shall include exceptions to decision. restricting the release of documents or any findings of fact or conclusions of testimony may seek review of the law made, together with supporting Dated: November 3, 2004. decision by filing a written Notice of reasons and arguments for such Kenneth M. Donohue, Sr., Intention to Petition for Review (Notice) exceptions based on appropriate Inspector General. within five business days of the date of citations to such record or law as may [FR Doc. 04–26769 Filed 12–6–04; 8:45 am] this decision. The Notice shall identify exist. These reasons may be stated in BILLING CODE 4210–78–P

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Reader Aids Federal Register Vol. 69, No. 234 Tuesday, December 7, 2004

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING DECEMBER

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 69836, 69838, 69842, 69844, Presidential Documents 3 CFR 70202, 70204, 70564, 70566, Executive orders and proclamations 741–6000 Proclamations: 70568, 70571, 70574 The United States Government Manual 741–6000 7850...... 70351 71...... 70208 7851...... 70353 Other Services Executive Orders: 15 CFR Electronic and on-line services (voice) 741–6020 13286 (See EO 750...... 69814 Privacy Act Compilation 741–6064 13362) ...... 70173 806...... 70543 Public Laws Update Service (numbers, dates, etc.) 741–6043 13289 (See EO Proposed Rules: TTY for the deaf-and-hard-of-hearing 741–6086 13363) ...... 70175 710...... 13303 (Amended by 711...... 70754 ELECTRONIC RESEARCH EO 13364)...... 70177 712...... 70754 World Wide Web 13315 (See EO 713...... 70754 13364) ...... 70177 714...... 70754 Full text of the daily Federal Register, CFR and other publications 13350 (See EO 715...... 70754 is located at: http://www.gpoaccess.gov/nara/index.html 13364) ...... 70177 716...... 70754 Federal Register information and research tools, including Public 13362...... 70173 717...... 70754 Inspection List, indexes, and links to GPO Access are located at: 13363...... 70175 718...... 70754 http://www.archives.gov/federallregister/ 13364...... 70177 719...... 70754 E-mail Administrative Orders: 720...... 70754 Memorandums: 721...... 70754 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Memorandum of 722...... 70754 an open e-mail service that provides subscribers with a digital October 21, 2004 ...... 70349 723...... 70754 form of the Federal Register Table of Contents. The digital form 724...... 70754 of the Federal Register Table of Contents includes HTML and 5 CFR 725...... 70754 PDF links to the full text of each document. 317...... 70355 726...... 70754 To join or leave, go to http://listserv.access.gpo.gov and select 352...... 70355 727...... 70754 Online mailing list archives, FEDREGTOC-L, Join or leave the list 359...... 70355 728...... 70754 (or change settings); then follow the instructions. 451...... 70355 729...... 70754 PENS (Public Law Electronic Notification Service) is an e-mail 530...... 70355 17 CFR service that notifies subscribers of recently enacted laws. 531...... 70355 534...... 70355 240...... 70852 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 575...... 70355 and select Join or leave the list (or change settings); then follow 841...... 69805 18 CFR the instructions. 842...... 69805 Proposed Rules: FEDREGTOC-L and PENS are mailing lists only. We cannot 843...... 69805 Ch. 1 ...... 70077 respond to specific inquiries. 6 CFR Reference questions. Send questions and comments about the 21 CFR Federal Register system to: [email protected] Proposed Rules: 510...... 70053 5...... 70402 The Federal Register staff cannot interpret specific documents or 520...... 70053 regulations. 522...... 70054, 70055 7 CFR 558...... 70056 1464...... 70367 Proposed Rules: FEDERAL REGISTER PAGES AND DATE, DECEMBER Proposed Rules: 165...... 70082 69805–70050...... 1 929...... 69996 1301...... 70576 70051–70178...... 2 9 CFR 23 CFR 70179–70350...... 3 166...... 70179 655...... 69815 70351–70536...... 6 430...... 70051 70537–70870...... 7 24 CFR 13 CFR 570...... 70864 121...... 70180 Proposed Rules: Proposed Rules: 206...... 70244 121...... 70197 2004...... 70868 3280...... 70016 14 CFR 39 ...... 69807, 69810, 70368, 25 CFR 70537, 70539 Proposed Rules: 71 ...... 70053, 70185, 70371, 542...... 69847 70372, 70541, 70542 Proposed Rules: 26 CFR 39 ...... 69829, 69832, 69834, 1...... 70547, 70550

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25...... 70547 117 ...... 70057, 70059, 70373 63...... 69864 18...... 70562 31...... 69819, 70547 165...... 70374 721...... 70404 27...... 70378 53...... 70547 Proposed Rules: 74...... 70378 55...... 70547 100...... 70578 41 CFR 90...... 70378 156...... 70547 117...... 70091, 70209 Proposed Rules: 101...... 70378 301...... 70547 165...... 70211 51-2...... 70214 63...... 70316 602...... 70547, 70550 51-3...... 70214 Proposed Rules: 36 CFR 51-4...... 70214 50 CFR 1...... 70578 13...... 70061 26...... 70404 242...... 70074 43 CFR 14...... 70379 44...... 70557 17...... 70382 29 CFR 37 CFR 1880...... 70557 100...... 70074 1926...... 70373 201...... 70377 222...... 69826 4011...... 69820 253...... 69822 44 CFR 223...... 69826 4022...... 69820 64...... 70377 622...... 70196 4044...... 69821 40 CFR 65...... 70185 635...... 70396 9...... 70552 67...... 70191, 70192 679...... 69828 30 CFR 52...... 69823 Proposed Rules: 18...... 70752 712...... 70552 47 CFR 17 ...... 69878, 70412, 70580 Proposed Rules: 0...... 70316 229...... 70094 33 CFR 52...... 69863 1...... 70378 648...... 70414 100...... 70551, 70552 60...... 69864 4...... 70316 679...... 70589, 70605

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REMINDERS Classification services to COURT SERVICES AND until further notice; The items in this list were growers; 2004 user fees; OFFENDER SUPERVISION published 10-16-03 [FR editorially compiled as an aid Open for comments until AGENCY FOR THE 03-26087] to Federal Register users. further notice; published DISTRICT OF COLUMBIA Pesticides; tolerances in food, Inclusion or exclusion from 5-28-04 [FR 04-12138] Semi-annual agenda; Open for animal feeds, and raw this list has no legal AGRICULTURE comments until further agricultural commodities: significance. DEPARTMENT notice; published 12-22-03 Mepanipyrim; comments due Rural Business-Cooperative [FR 03-25121] by 12-13-04; published Service ENERGY DEPARTMENT 10-13-04 [FR 04-22963] RULES GOING INTO Special programs: Meetings: Toxic substances: EFFECT DECEMBER 7, Farm Security and Rural Enzymes and proteins; 2004 Environmental Management Investment Act of 2002; Site-Specific Advisory nomenclature inventory; implementation— Board— comments due by 12-15- INTERIOR DEPARTMENT Renewable Energy 04; published 11-15-04 Oak Ridge Reservation, [FR 04-25307] Land Management Bureau Systems and Energy TN; Open for comments Water pollution control: Financial assistance, local Efficiency until further notice; governments: Improvements, Grant, published 11-19-04 [FR National Pollutant Discharge Guaranteed Loan, and Elimination System— Payment in Lieu of Taxes 04-25693] Direct Loan Program; Program; operating Concentrated animal comments due by 12- ENERGY DEPARTMENT responsibility transfered to feeding operations in 15-04; published 11-15- Energy Efficiency and Interior Department; New Mexico and 04 [FR 04-25239] Renewable Energy Office published 12-7-04 Oklahoma; general COMMERCE DEPARTMENT Commercial and industrial permit for discharges; INTERIOR DEPARTMENT Industry and Security equipment; energy efficiency Open for comments Financial assistance, local Bureau program: until further notice; governments: published 12-7-04 [FR Export administration Test procedures and 04-26817] Payment in Lieu of Taxes regulations: efficiency standards— Water pollution; effluent Program; operating Knowledge and red flags; Commercial packaged guidelines for point source responsibility transfered definition and guidance boilers; Open for categories: from Land Management revisions; safe harbor; comments until further Bureau; published 12-7-04 comments due by 12-15- notice; published 10-21- Meat and poultry products TRANSPORTATION 04; published 11-15-04 04 [FR 04-17730] processing facilities; Open for comments until further DEPARTMENT [FR 04-25309] ENERGY DEPARTMENT Federal Aviation notice; published 9-8-04 COMMERCE DEPARTMENT Federal Energy Regulatory [FR 04-12017] Administration National Oceanic and Commission FARM CREDIT Airworthiness directives: Atmospheric Administration Alaska Natural Gas Pipeline ADMINISTRATION Bell Helicopter Textron Civil procedures; comments Act: Farm credit system: Canada; published 11-2- due by 12-13-04; published Conduct of open seasons 04 10-12-04 [FR 04-22598] Borrower rights; comments for natural gas due by 12-16-04; Boeing; published 11-2-04 Fishery conservation and transportation projects; published 11-16-04 [FR management: Eurocopter Deutschland; comments due by 12-17- 04-25397] published 11-2-04 Alaska; fisheries of 04; published 11-23-04 Exclusive Economic [FR 04-25933] FEDERAL Fokker; published 11-2-04 COMMUNICATIONS Zone— Electric rate and corporate McCauley Propeller COMMISSION Systems; published 11-22- Bering Sea and Aleutian regulation filings: Islands king and tanner Radio stations; table of 04 Virginia Electric & Power assignments: crab; comments due by Co. et al.; Open for MD Helicopters, Inc.; Alabama and Mississippi; 12-13-04; published 10- comments until further published 11-22-04 comments due by 12-13- 29-04 [FR 04-24103] notice; published 10-1-03 04; published 11-17-04 TREASURY DEPARTMENT Caribbean, Gulf, and South [FR 03-24818] Internal Revenue Service Atlantic fisheries— [FR 04-25511] ENVIRONMENTAL Minnesota and Oklahoma; Income taxes, etc.: Gulf of Mexico reef fish; PROTECTION AGENCY comments due by 12- comments due by 12-16- Automatic time extension to Air quality implementation 16-04; published 11-16- 04; published 11-10-04 file certain information plans; approval and [FR 04-25058] returns and exempt 04 [FR 04-25429] promulgation; various Oklahoma and Texas; organization returns; Magnuson-Stevens Act States: published 12-7-04 provisions— comments due by 12-16- California; comments due by 04; published 11-10-04 Pacific Coast groundfish; 12-16-04; published 11- [FR 04-25061] fishing capacity COMMENTS DUE NEXT 16-04 [FR 04-25301] Wyoming; comments due by WEEK reduction program.; comments due by 12- Illinois; comments due by 12-16-04; published 11- 16-04; published 11-16- 12-13-04; published 11- 10-04 [FR 04-25057] AGRICULTURE 04 [FR 04-25428] 12-04 [FR 04-24916] HEALTH AND HUMAN DEPARTMENT Marine mammals: Iowa; comments due by 12- SERVICES DEPARTMENT 13-04; published 11-12-04 Agricultural Marketing Taking and importation— Food and Drug [FR 04-24918] Administration Service Kodiak Island, AK; rocket Beef promotion and research; launches at Kodiak Environmental statements; Food additives: comments due by 12-13-04; Launch Complex; availability, etc.: Mannitol; comments due by published 11-12-04 [FR 04- pinnipeds; comments Coastal nonpoint pollution 12-15-04; published 11- 25198] due by 12-13-04; control program— 15-04 [FR 04-25243] Cotton classing, testing and published 10-29-04 [FR Minnesota and Texas; Reports and guidance standards: 04-24234] Open for comments documents; availability, etc.:

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Evaluating safety of INTERIOR DEPARTMENT published 11-16-04 [FR session of Congress which antimicrobial new animal Surface Mining Reclamation 04-25415] have become Federal laws. It drugs with regard to their and Enforcement Office Airworthiness directives: may be used in conjunction microbiological effects on Abandoned mine land Airbus; comments due by with ‘‘PLUS’’ (Public Laws bacteria of human health reclamation: 12-17-04; published 11- Update Service) on 202–741– concern; Open for 22-04 [FR 04-25793] 6043. This list is also comments until further Coal production fees and available online at http:// Boeing; comments due by notice; published 10-27-03 fee allocation www.archives.gov/ 12-13-04; published 10- [FR 03-27113] Republication; comments federal—register/public—laws/ due by 12-16-04; 29-04 [FR 04-24220] Medical devices— public—laws.html. published 11-29-04 [FR Dornier; comments due by Dental noble metal alloys 04-26195] 12-13-04; published 11- The text of laws is not and base metal alloys; 12-04 [FR 04-25192] published in the Federal Class II special NUCLEAR REGULATORY EXTRA Flugzeugbau GmbH; Register but may be ordered controls; Open for COMMISSION comments due by 12-15- in ‘‘slip law’’ (individual comments until further Environmental statements; 04; published 11-12-04 pamphlet) form from the notice; published 8-23- availability, etc.: [FR 04-25193] Superintendent of Documents, 04 [FR 04-19179] Fort Wayne State U.S. Government Printing Gippsland Aeronautics Pty. HOMELAND SECURITY Developmental Center; Office, Washington, DC 20402 Ltd.; comments due by DEPARTMENT Open for comments until (phone, 202–512–1808). The 12-15-04; published 11-8- Coast Guard further notice; published text will also be made 5-10-04 [FR 04-10516] 04 [FR 04-24819] Anchorage regulations: available on the Internet from Glaser-Dirks Flugzeugbau GPO Access at http:// Maryland; comments due by PERSONNEL MANAGEMENT GmbH; comments due by www.gpoaccess.gov/plaws/ 12-13-04; published 10- OFFICE 12-13-04; published 11-8- index.html. Some laws may 12-04 [FR 04-22745] Post-employment restrictions; 04 [FR 04-24818] notification; comments due not yet be available. Drawbridge operations: Gulfstream; comments due by 12-14-04; published 10- Delaware; comments due by by 12-17-04; published H.R. 1113/P.L. 108–417 15-04 [FR 04-23194] 12-13-04; published 10- 10-18-04 [FR 04-23027] To authorize an exchange of 12-04 [FR 04-22850] POSTAL RATE COMMISSION Hartzell Propeller Inc.; land at Fort Frederica National HOUSING AND URBAN Practice and procedure: comments due by 12-13- Monument, and for other DEVELOPMENT Postal service; definition; 04; published 10-14-04 purposes. (Nov. 30, 2004; 118 DEPARTMENT comments due by 12-15- [FR 04-22728] Stat. 2339) Mortgage and loan insurance 04; published 11-18-04 McDonnell Douglas; H.R. 1284/P.L. 108–418 programs: [FR 04-25567] comments due by 12-13- To amend the Reclamation Federal National Mortgage SMALL BUSINESS 04; published 10-27-04 Projects Authorization and Association (Fannie Mae) ADMINISTRATION [FR 04-24032] Adjustment Act of 1992 to and Federal Home Loan Disaster loan areas: Class D airspace; comments increase the Federal share of Mortgage Corporation Maine; Open for comments due by 12-15-04; published the costs of the San Gabriel (Freddie Mac)— until further notice; 11-8-04 [FR 04-24848] Basin demonstration project. Government-sponsored published 2-17-04 [FR 04- VOR Federal airways; (Nov. 30, 2004; 118 Stat. enterprises housing 03374] comments due by 12-13-04; 2340) goals (2005-2008 CYs); published 10-28-04 [FR 04- H.R. 1417/P.L. 108–419 OFFICE OF UNITED STATES comments due by 12- 24146] TRADE REPRESENTATIVE Copyright Royalty and 17-04; published 11-2- Distribution Reform Act of Trade Representative, Office TRANSPORTATION 04 [FR 04-24100] 2004 (Nov. 30, 2004; 118 of United States DEPARTMENT INTERIOR DEPARTMENT Stat. 2341) Generalized System of Research and Special Fish and Wildlife Service Preferences: Programs Administration H.R. 1446/P.L. 108–420 Endangered and threatened California Missions 2003 Annual Product Hazardous materials: species permit applications Preservation Act (Nov. 30, Review, 2002 Annual Transportation— 2004; 118 Stat. 2372) Recovery plans— Country Practices Review, Compressed oxygen, Paiute cutthroat trout; and previously deferred other oxidizing gases, H.R. 1964/P.L. 108–421 Open for comments product decisions; and chemical oxygen Highlands Conservation Act until further notice; petitions disposition; Open generators on aircraft; (Nov. 30, 2004; 118 Stat. published 9-10-04 [FR for comments until further comments due by 12- 2375) 04-20517] notice; published 7-6-04 13-04; published 8-4-04 H.R. 3936/P.L. 108–422 Endangered and threatened [FR 04-15361] [FR 04-17747] Veterans Health Programs species: TRANSPORTATION TREASURY DEPARTMENT Improvement Act of 2004 Critical habitat DEPARTMENT Internal Revenue Service (Nov. 30, 2004; 118 Stat. designations— Economic regulations: Income taxes: 2379) Buena Vista Lake shrew; Commuter air carrier Purchase price allocation in H.R. 4516/P.L. 108–423 comments due by 12- registrations; elimination; deemed and actual asset Department of Energy High- 15-04; published 11-30- comments due by 12-13- acquisitions; nuclear End Computing Revitalization 04 [FR 04-26472] 04; published 10-28-04 decommissioning funds Act of 2004 (Nov. 30, 2004; Southwestern willow [FR 04-23859] treatment; cross-reference; 118 Stat. 2400) flycatcher; comments comments due by 12-15- due by 12-13-04; TRANSPORTATION H.R. 4593/P.L. 108–424 DEPARTMENT 04; published 9-16-04 [FR Lincoln County Conservation, published 10-12-04 [FR 04-20915] 04-22394] Federal Aviation Recreation, and Development Ute ladies’-tresses orchid; Administration Act of 2004 (Nov. 30, 2004; five-year review; Airmen certification: LIST OF PUBLIC LAWS 118 Stat. 2403) comments due by 12-13- Second-in-command pilot H.R. 4794/P.L. 108–425 04; published 10-12-04 type rating; comments This is a continuing list of To amend the Tijuana River [FR 04-22735] due by 12-16-04; public bills from the current Valley Estuary and Beach

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Sewage Cleanup Act of 2000 H.R. 5213/P.L. 108–427 listserv.gsa.gov/archives/ to extend the authorization of Research Review Act of 2004 publaws-l.html appropriations, and for other (Nov. 30, 2004; 118 Stat. Public Laws Electronic purposes. (Nov. 30, 2004; 118 2430) Notification Service Note: This service is strictly Stat. 2420) H.R. 5245/P.L. 108–428 (PENS) for E-mail notification of new To extend the liability H.R. 5163/P.L. 108–426 laws. The text of laws is not indemnification regime for the available through this service. Norman Y. Mineta Research commercial space PENS is a free electronic mail and Special Programs transportation industry. (Nov. notification service of newly PENS cannot respond to Improvement Act (Nov. 30, 30, 2004; 118 Stat. 2432) enacted public laws. To specific inquiries sent to this 2004; 118 Stat. 2423) Last List November 26, 2004 subscribe, go to http:// address.

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